⚖️ WINOGRAD WHOMPS 🥊 GARLAND’S EOIR AGAIN, THIS TIME ON “PARTICULARLY SERIOUS CRIME” (“PSC”)! — Annor v. Garland — Following Precedents, Analyzing Correct Statute Proves Elusive For Garland’s Dysfunctional Courts! 🏴‍☠️ — “Because the BIA analyzed the wrong statute 🤯 at the first step of its analysis, and omitted the most important factor 🤯🤯 at the second, we vacate the BIA’s decision and remand to the BIA for further proceedings consistent with this opinion.”

CAIR Coalition
IMAGE: CAIR Coalitiin

From the CAIR Coalition on Linkedin:

Today, we’re celebrating the Fourth Circuit’s decision in Annor v. Garland. The court ruled that immigration judges must follow proper analytical steps in determining whether noncitizens have been convicted of a particularly serious crime (PSC).

 

This is an important decision because anyone convicted of a PSC is ineligible for asylum and withholding of removal, so PSC determinations have life-or-death consequences for immigrants facing persecution if they are deported to their home countries.

 

“Today, the Fourth Circuit spoke clearly: the immigration court system must treat PSC determinations with the care they deserve,” stated Immigration Impact Lab Senior Attorney Peter Alfredson, who worked on the amicus brief alongside Lab Deputy Program Director Samantha Hsieh.

 

CAIR Coalition submitted an amicus brief, also signed by RAICES, in support of Mr. Annor, who was represented by Ben Winograd of the Immigrant & Refugee Appellate Center, LLC.

Here’s the decision (PANEL: HEYTENS and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge): https://www.ca4.uscourts.gov/opinions/231281.P.pdf

*********************************

Come on, man! How is this a competent adjudication by the BIA? It isn’t! So, why is it happening time and again under Garland?

[T]he immigration court system must treat PSC determinations with the care they deserve!” Absolutely! But, it’s not happening in Garland’s “any reason to deny/defend garbage” DOJ! At least it’s not happening systemically under Garland! 

Rather than correcting IJ errors and insisting that the legal rights of migrants be respected and protected, the BIA too often has been a big part of the problem! Sloppiness, lack of expertise, “any reason to deny,” “reject don’t protect” have all become hallmarks of Garland’s dysfunctional system!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

Contrary to GOP White Nationalist restrictionist blather, accepted by many spineless Dem politicos and the media, and enabled by Garland, this system should be identifying, screening, facilitating representation, expediting protection (not rejection), and arranging reception and resettlement, NOT engaging in more mindless “deterrence” and “uber enforcement.” 

Garland’s abject failure to insist on due process and stand up for the legal and human rights of asylum seekers and other migrants has undermined our democracy! There is a huge “over-denial“ problem in our asylum adjudication system that skews the entire “debate!”

Our nation, our politicos, and our media are simply too gutless and morally vapid to admit that there are many, many more individuals arriving at our borders who should qualify for some sort of legal protection under a fair and legitimate screening and adjudication system! 

Best comment, from Dan Kowalski @ LexisNexis: “Something is seriously wrong at DOJ when a seasoned IJ and BIA member make these kinds of mistakes, and when OIL attorneys defend such errors in court.  Crimmigration should not be so hard that it takes a team of litigation superstars to achieve a just result!”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC) — “He ‘gets’ it! So why don’t Garland and Dem leaders? Is Dan THAT much smarter than they are?  Sure looks like it!”

You betcha, Dan! “Something is seriously wrong at DOJ” is an understatement! Dan, Hon. “Sir Jeffrey” Chase, and I are among the many who have been saying that since the Obama Administration. It’s painfully obvious that Garland isn’t the answer (nor is Mayorkas), and that NDPA superstars like Ben and others should be in charge of the human rights legal and adjudication bureaucracies at DOJ and DHS in a Dem Administration! 

🇺🇸 Due Process Forever!

PWS

03-18-24

⚖️🗽👩🏾‍⚖️ CALLING NDPA ALL-STARS!🌟 — WANTED: BIA APPELLATE JUDGE DEDICATED TO DUE PROCESS, ASYLUM EXPERTISE, & PROMOTING BEST PRACTICES!  — Apply By April 12, 2024! — Better Judges For A Better America!

Refugees Welcome
What if the BIA cared about protection of asylum seekers rather than defaulting to rejection?
IMAGE: Public Realm

https://www.usajobs.gov/job/781350500

Summary

The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Learn more about this agency

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This job is open to

Clarification from the agency

U.S. Citizens, Nationals or those who owe allegiance to the U.S.

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Duties

This position is in the Board of Immigration Appeals, within the Executive Office for Immigration Review. The incumbent reports to a Deputy Chief Appellate Immigration Judge, who in turn reports to the Chief Appellate Immigration Judge.

Appellate Immigration Judges must apply immigration laws impartially, humanely, and equitably and ensure that all parties are treated with respect and dignity. They also must resolve cases expeditiously, in accordance with all applicable laws and regulations, and consistent with the Department’s priorities and policies.

Appellate Immigration Judges are commissioned to serve in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the U.S. Department of Homeland Security in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when appropriate. An Appellate Immigration Judge may concur or dissent based on their view of any given case. The majority of the Appellate Immigration Judges’ duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, and bond and detention.

The majority of an Appellate Immigration Judge’s duties will be dedicated to the appellate work, but an Appellate Immigration Judge must also be qualified, and may be called upon, to conduct trial level proceedings in the role of an immigration judge.

Appellate Immigration Judges make decisions that are final, subject to appeal to the Federal courts. In connection with these proceedings, Appellate Immigration Judges exercise certain discretionary powers as provided by law and are required to exercise independent judgment in reaching final decisions.

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Requirements

Conditions of Employment

You must be a U.S. Citizen or National.

Employment is contingent upon the completion and satisfactory adjudication of a background investigation.

Selective Service Registration is required, as applicable.

Moving and Relocation Expense are not authorized.

You must have relevant experience (see “Qualifications” below.)

Qualifications must be met by the closing date of the announcement.

If selected, you must file a financial disclosure statement in accordance with the Ethics in Government Act of 1978.

You must receive your Federal salary by Direct Deposit (to a financial institution of their choosing).

Qualifications

In order to qualify for the Appellate Immigration Judge position, applicants must meet all of the following minimum qualifications:

  • Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

  • Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level. Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority. Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body.

NOTE: Qualifying experience is calculated from the date of your first admission to the bar.

In addition, successful applicants will have a strong combination of experience demonstrating that they will perform at the level of competence, impartiality, and professionalism expected of an Appellate Immigration Judge. For more information about relevant experience and knowledge, please see the “How You Will Be Evaluated” section.

Additional information

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Additional positions may be filled from this announcement within 90 days of certificate issuance.

Alternative work schedule options are available.

There is no formal rating system for applying veterans’ preference to Appellate Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Appellate Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See “Required Documents” section.)

Conditions of Employment: Only U.S. Citizens or Nationals are eligible for employment with the Executive Office for Immigration Review. Dual citizens of the U.S. and another country will be considered on a case-by-case basis. All DOJ applicants, both U.S. Citizens and non-citizens, whose job location is with the United States, must meet the residency requirement. For a total of three (not necessarily consecutive years) of the five years immediately prior to applying for a position, the applicant must have: 1) resided in the United States; 2) worked for the United States overseas in a Federal or military capacity; or 3) been a dependent of a Federal or military employee serving oversees.

As the Federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.

Additional Information: The COVID-19 vaccination requirement for Federal employees pursuant to Executive Order 14043 does not currently apply. Some jobs, however, may be subject to agency- or job-specific vaccination requirements, so please review the job announcement for details. To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified or vacated, depending on the course of ongoing litigation, the Federal government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Therefore, to the extent a Federal job announcement includes the requirement that applicants must be fully vaccinated against COVID-19 pursuant to Executive Order 14043, that requirement does not currently apply.

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  • Benefits

How You Will Be Evaluated

You will be evaluated for this job based on how well you meet the qualifications above.

You will be evaluated for this job based on how well you meet the qualifications above.

Applicants meeting the minimum qualifications stated above will be further evaluated to determine those who are best qualified. This determination will be based, in part, on the following Quality Ranking Factors (QRFs), which need to be addressed as part of the application package.

  1. Ability to demonstrate the appropriate temperament to serve as a judge. Appellate Immigration Judges need to possess traits such as compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law. Additionally, individuals in this role are expected to exercise discretion, and articulate how that discretion is being exercised, in complex, sensitive, high-pressure and/or emotional situations. A strong candidate demonstrates excellent analytical, decision-making, and writing abilities.
  2. Litigation or adjudication experience, preferably in a high volume judicial or administrative context. Appellate Immigration Judges often must balance a variety of skills that can include managing a high volume of cases, drafting decisions, and reviewing an administrative record at the appellate level. It is vital that a candidate is able to manage a high-volume docket under tight deadlines without compromising quality.
  3. Experience conducting administrative hearings or adjudicating administrative cases. Appellate Immigration Judges are expected to decide difficult or complex issues, particularly those that impact people’s lives. Prior adjudication experience in other tribunals – Federal, state, local, military or other court systems – is ideal, however, adjudications experience may be drawn from non-courtroom settings. For candidates who have limited adjudications experience, significant litigation experience before EOIR or extensive litigation experience in settings comparable to an immigration court setting may be considered.
  4. Experience handling complex legal issues. Immigration law often involves handling complex legal issues. This role requires being able to work through complicated fact patterns and issues, novel areas of the law, as well as learning, adapting to, and incorporating changes in the law.
  5. Knowledge of immigration laws and procedures. In this role, depth and/or volume of immigration law experience is important. Candidates should have meaningful experience applying complex immigration law, which can include representing non-citizens or the Federal government in matters involving complex or diverse immigration laws, adjudicating immigration matters, legislative or administrative advocacy on immigration policy issues, academic or clinical experience, and other similar work that involves routine analysis and application of immigration law.

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Required Documents

To apply for this position, you must provide a complete Application Package by 11:59 PM (ET) on 04/12/2024, the closing date of this announcement, which includes:

  1. Your Resume documenting seven (7) years experience since being admitted to the bar.
  2. A complete online Assessment Questionnaire.
  3. Document(s)addressing the Quality Ranking Factors (QRFs) listed above.
  4. A Writing Sample demonstrating your ability to author legal documents (10 pages, maximum; an excerpt of a longer document is acceptable).
  5. Current or former Federal employees must provide copies of their most recent and their latest SF-50, Notification of Personnel Action.
  6. Other Supporting Documents, if applicable:
    • Veterans’ Preference Documentation: Although the veterans’ preference point system does not apply to this position, we accept preference claims and adjudicate such claims per the documentation provided. Note: If claiming 5-point veterans’ preference, include a DD-214 or statement of service. If claiming 10-point veterans’ preference, include an SF-15 and documentation required by that form, VA or military letter dated 1991 or later, and DD-214.
    • Any other supporting documentation required for verification as described in the announcement.

Tips for your resume:

  • Ensure that your resume contains your full name, address, phone number, email address, and employment information.
  • Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed.
  • In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.

Tips for addressing QRFs:

  • Applicants should use narrative form to address each of the five (5) QRFs. They must be written in a separate document indicating the by-number of the specific QRF being addressed.
  • Successful applicants will address all of the QRFs. If you do not have the specific experience addressed in a QRF, we encourage you to write about a similar skill, ability, knowledge, or experience.
  • Applicants should be thorough in addressing each QRF. This includes:
    • Approximate number of cases or matters handled in a given period of time.
    • Applicant’s specific role (e.g., adjudicator, first chair, co-counsel, responsible for the written brief only, etc.).
    • Length of time involved in a given role (e.g., lead counsel in 20 immigration proceedings in 10 years).
    • Specific examples of the types of cases (asylum application, pleas, settlement, bench trial, jury trial, etc.).
    • The number of court and/or administrative appearances made in those cases.
    • The case dispositions (ruling on the merits, plea or similar resolution, settlement, trial, jury trial, etc.).

Failure to submit the documents listed above with your application package will result in your application package being removed from consideration.

If you are relying on your education to meet qualification requirements:

Education must be accredited by an accrediting institution recognized by the U.S. Department of Education in order for it to be credited towards qualifications. Therefore, provide only the attendance and/or degrees from schools accredited by accrediting institutions recognized by the U.S. Department of Education.

Failure to provide all of the required information as stated in this vacancy announcement may result in an ineligible rating or may affect the overall rating.

Help Help

How to Apply

You must submit a complete application package by 11:59 PM (EST) on 04/12/2024, the closing date of the announcement.

  • To begin, click Apply Online to create a USAJOBS account or log in to your existing account. Follow the prompts to select your USAJOBS resume and/or other supporting documents and complete the occupational questionnaire.
  • Click the Submit My Answers button to submit your application package.
  • It is your responsibility to ensure your responses and appropriate documentation is submitted prior to the closing date.
  • To verify your application is complete, log into your USAJOBS account, select the Application Status link and then select the more information link for this position. The Details page will display the status of your application, the documentation received and processed, and any correspondence the agency has sent related to this application. Your uploaded documents may take several hours to clear the virus scan process.
  • To return to an incomplete application, log into your USAJOBS account and click Update Application in the vacancy announcement. You must re-select your resume and/or other documents from your USAJOBS account or your application will be incomplete.

If you are unable to apply online or need to fax a document you do not have in electronic form, view the following link for information regarding an Alternate Application.

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Agency contact information

Shenita Gibbons Shenita Gibbons

Email

Shenita.Gibbons@usdoj.gov

Address

Board of Immigration Appeals

5107 Leesburg Pike

Falls Church, VA 22041

US

Learn more about this agency

Next steps

We will evaluate the qualifications and eligibility of all applicants, and then assess those who meet the minimum qualifications. All candidates who meet all the minimum requirements will be referred to the hiring official for further consideration. We will notify you of the final outcome after all of these steps have been completed.

Fair & Transparent

The Federal hiring process is set up to be fair and transparent. Please read the following guidance.

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Overview

  • Accepting applications
  • Open & closing dates
    Opening and closing dates 03/13/2024 to 04/12/2024
  • Salary
    $156,924 – $204,000 per year
  • Pay scale & grade
    IJ 00
  • Location
    1 vacancy in the following location:

    • Falls Church, VAFalls Church, VA
  • Remote job
    No
  • Telework eligible
    Yes—as determined by the agency policy.
  • Travel Required
    50% or less – You may be expected to travel for this position.
  • Relocation expenses reimbursed
    No
  • Appointment type
    Permanent –
  • Work schedule
    Full-time –
  • Service
    Excepted
  • Promotion potential
    00
  • Job family (Series)
    0905 Attorney
  • Supervisory status
    No
  • Security clearance
    Not Required
  • Drug test
    Yes
  • Position sensitivity and risk
    High Risk (HR)
  • Trust determination process
    Credentialing
  • Announcement number
    DE-12329429-24-SG
  • Control number
    781350500

Beginning of a dialog window for the agency announcing this job. It begins with a heading 2 called “Learn more about Field Operating Offices of the Office of the Secretary of the Army”. Escape will cancel and close the window.

Learn more about

Executive Office for Immigration Review

If you are interested in a rewarding and challenging career, this is the position for you!

The Executive Office for Immigration Review seeks highly-qualified individuals to join our team of expert professionals in becoming a part of our challenging and rewarding Agency. The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three adjudicatory components: The Office of the Chief Immigration Judge, which is responsible for managing the Immigration Courts where Immigration Judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of these Immigration Judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.

Agency contact information

Shenita Gibbons Shenita Gibbons

Email

Shenita.Gibbons@usdoj.gov

Address

Board of Immigration Appeals

5107 Leesburg Pike

Falls Church, VA 22041

US

Visit our careers page

Learn more about what it’s like to work at Executive Office for Immigration Review, what the agency does, and about the types of careers this agency offers.

https://www.justice.gov/eoir/

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**********************

Yes, EOIR is a mess! But, it’s not going to get any better without better judges, particularly at the BIA which sets precedents and should (even if it now doesn’t) maintain nationwide consistency among Immigration Judges and articulate and implement “best judicial practices.”

Quite disappointingly and outrageously, the Biden Administration and A.G. Garland have failed to “clean house” and bring long overdue due process and judicial reforms to EOIR. So, the NDPA will have to go about it “the old-fashioned way:” one judicial vacancy at a time!

What if we had a BIA that:

  • Believed due process and fundamental fairness are “job one;”
  • Insured correctness and quality over “generating numbers;”
  • Institutionalized protection, not rote rejection, of asylum seekers;
  • Built on past precedents for properly generous treatment of asylum seekers like INS v. Cardoza-Fonseca, Matter of Mogharrabi, and Matter of Kasinga, rather than ignoring, or looking for artificial ways to limit them;
  • Issued precedents insuring early identification and consistent granting of many current and repetitive asylum applications;
  • Looked for ways to simplify, rather than overcomplicate and obfuscate, legal guidance;
  • Had “zero tolerance” for anti-immigrant, anti-asylum, racial, gender, and other biases among Immigration Judges (e.g., no more “asylum free zones”);
  • Refused to allow the Immigraton Court system to be misused and abused as a “deterrent” or “an adjunct of DHS Enforcement;”
  • Developed and enforced “best judicial practices;”
  • Prioritized facilitating pro bono representation as a key element of due process;
  • Aspired to make the “former vision of EOIR” — “through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all” — a reality, rather than a cruel hoax!

Of course, one judge can’t do it all! But, there are plenty of great judges in the current EOIR system, at both levels, who need reenforcement and reaffirmation! Rebuilding the EOIR system so that it is a real, due-process-oriented, subject-matter-expert court that insures justice — rather than institutionalizing injustice — has to start somewhere! Fixing EOIR would also help save the entire faltering Federal Judicial system.

If the NDPA doesn’t do it, who will? Certainly not Biden, Harris, Garland or their minions— or at to least not without being pushed from within and dragged kicking and screaming from without.

Waiting for Godot
Waiting for Godot (a/k/a Merrick Garland) to fix EOIR isn’t going to cut it!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
Waiting for Godot in Doon School.jpg Copy
[[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]]
Copy
December 8, 2011
So, don’t “wait for Godot” to fix this broken system! Clue: He’s not coming! Get those applications in now!

Better judges for a better America! Sooner, rather than later!

🇺🇸 Due Process Forever!

PWS

03-15-24

😘 NEW “DREAM TEAM” FOR EOIR REFORM? — Judge (Ret.) Dana Leigh Marks & Sen. Chuck Grassley (R-IA)  Blast 💣Garland’s “Muzzling” Of NAIJ, Demand Change! 🤯

Star Chamber Justice
“Justice” —  While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!

Two items from the indomitable Dan Kowalski @ LexisNexis:

  1. “LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”

https://www.lexisnexis.com/community/insights/legal/immigration/b/outsidenews/posts/exclusive-hon-dana-leigh-marks-on-eoir-gag-order

Judge Marks says:

. . . .

This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.

Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?

In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.

EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”

The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
Retired U.S. Immigration Judge
Past President, National Association of Immigration Judges, Member of The Round Table of  Former IJs.

2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”

https://www.grassley.senate.gov/imo/media/doc/grassley_to_doj_-_eoir_disclosures_to_congress.pdf

I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.

. . . .

Sen. Chuck Grassley (R-IA)Official Photo
Sen. Chuck Grassley (R-IA)
Official Photo

***************************

Read the full statements of Judge Marks and Sen.Grassley at the links above.

Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.

The idea that the SET is “necessary” to promote “public confidence in IJ impartiality,” is preposterous in light of the growing body of documentation of racism, anti-immigrant bias, and defective decision-making within Garland’s dysfunctional courts. For sure, EOIR has an extreme “public confidence and institutional bias problem!” But, it’s got nothing to do with the NAIJ speaking to Congress or in any other public forum. Ask the good folks over at the Ohio Immigrant Alliance who just issued a scathing report on racism and other grotesque institutional abuses going on at EOIR on Garland’s watch! See https://immigrationcourtside.com/2024/03/06/%f0%9f%a4%90-busted-eoir-squelches-ijs-union-administration-moves-to-silence-outspoken-uncensored-critic-of-dysfunctional-court-system-news-comes-on-heels-of/.

Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:

https://www.justsecurity.org/66433/know-your-rights-conversations-with-congress/

More “Unforced Errors” By Garland

Here’s what Garland should be doing to promote “order at the border:”

  • Prioritize fairness and efficiency in asylum and immigration court adjudications.

  • Respect and maintain the fundamental right of migrants to seek asylum at the border, regardless of manner of entry or transit.

https://wp.me/p8eeJm-9PM

Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so.  Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say. 

Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g.https://youtu.be/MEJ093pDGI4%C2%A0.

In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.

DISCLOSURE: I am a proud retired member of the NAIJ.

🇺🇸 Due Process Forever

PWS

03-14-24

😎⚖️🗽

🤯 INCREDIBLE! — Even Righty Judge Lawrence Van Dyke @ CA 9 Has Had His Fill Of Garland’s Badly Bumbling BIA Brethren! — Kalulu v. Garland — You Can Add Anti-Gay Stereotypes To The List Of Documented Charges Against Garland’s Deadly Clown Show! 🤡🤮☠️

Clown Parade
The “Clown Show” continues in full regalia at Garland’s EOIR.  But, nobody’s laughing about the potentially deadly consequences! PHOTO: Public Domain

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 (2-1) on Credibility, Evidence: Kalulu v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/11/21-895.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-2-1-on-credibility-evidence-kalulu-v-garland

“This court grants a petition for review of an agency denial of asylum, withholding of removal, and CAT relief only under the most extraordinary circumstances. See Gutierrez-Alm, 62 F.4th at 1194; Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This is one of those rare instances. For the reasons discussed above, the agency’su adverse credibility determination is amply supported by substantial evidence. But the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her testimony, and the BIA made clear factual errors when it reviewed those documents. Because the agency’s decision therefore “cannot be sustained upon its reasoning,” this case must be remanded for the IJ or BIA to reconsider its decision. De Leon, 51 F.4th at 1008 (internal quotation marks omitted). On remand, the agency must reexamine the three declarations and medical document discussed in section III(b) to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal. This court takes no position on whether those documents provide such proof or whether Kalulu merits any of the relief for which she applied.”

Dissent: “The majority ignores our precedent and instead concludes that the agency would have reached the same adverse credibility determination in the absence of these unsupported findings. That approach contravenes the REAL ID Act, binding circuit precedent, and fundamental principles of administrative law. I respectfully dissent.”

[Hats off to Amalia Wille and Judah Lakin!]

Amalia Wille ESQUIRE
Amalia Wille ESQUIRE
Judah Lakin ESQUIRE
Judah Lakin ESQUIRE

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

********************

Many congrats to Amalia, Judah, and their NDPA team!

As my friend Dan often says about EOIR, “you can’t make this stuff up!”🤯

Well, the panel judges all agree that the BIA is wrong! It’s just a question of HOW wrong. 

Note Van Dyke is a Trump appointee, and one of the most far-right judges on the bench. Murphy is a Bush II appointee. Sanchez (concur/dissent) is a Biden appointee.

The BIA has to have worked overtime to do such a miserable job that even Van Dyke couldn’t paper it over, although he took a stab at it!

The majority decision is basically a restatement of the 4th Circuit’s pre-REAL ID precedent Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). That case materially affected practices, changed results, and saved lives during my tenure at the “Legacy”Arlington Immigration Court!

So, it’s not that requiring that testimony be evaluated along with independent, non-testimonial evidence is something “new” or “rocket science!”🚀 Heck, it’s even incorporated in the REAL ID Act. This is “Immigration 101!” Yet, the  BIA came up woefully short while Garland ignores fundamental flaws in his judicial system. 

It’s well worth looking at a bit more of Judge Gabriel Sanchez’s vigorous separate opinion:

Petitioner Milly Kalulu, a native of Zambia, alleges she

was persecuted because she is a lesbian in a country that

criminalizes same-sex relationships. When her relationship

with a woman was discovered by her girlfriend’s brothers,

she was beaten, whipped, injected with an unknown

substance, stabbed in the chest, doused with gasoline, and

threatened with death over several violent encounters.

Kalulu submitted documentary evidence corroborating her

claims, including a copy of her medical report, a declaration

from her aunt in California, and declarations from several

Zambians who witnessed the attacks on her. The agency,

however, dismissed this evidence based on unsupportable or

trivial grounds.

I agree with the majority that the agency failed to

consider whether Kalulu’s supporting evidence

independently proves her claims for asylum, withholding of

removal, and relief under the Convention Against Torture

(CAT). “Where potentially dispositive testimony and

documentary evidence is submitted, the BIA must give

reasoned consideration to that evidence.” Cole v. Holder,

659 F.3d 762, 772 (9th Cir. 2011); see also Antonio v.

Garland, 58 F.4th 1067, 1077 (9th Cir. 2023) (“[W]here

there is any indication that the agency did not consider all of

the evidence before it the decision cannot stand.” (cleaned

up)). Remand is required where, as here, the agency did not

give reasoned consideration to highly probative evidence

that may independently support Kalulu’s claims of past

persecution.

But the agency’s failure to consider the documentary

evidence was emblematic of other significant errors

underlying its adverse credibility determination. The most

egregious example? Disbelieving Kalulu’s claim that she is

a lesbian because she had not visited gay clubs or

participated openly in “LGBT activities” during her first five

months in the United States. As the majority recognizes,

two-thirds of the factors cited by the agency for its adverse

credibility determination were based on dubious

stereotyping, mischaracterizations of the testimony, or

purported inconsistencies not found in the record.

These charges of anti-gay bias and invidious stereotyping basically echo the serious findings of institutional racism and other “baked-in bias” at Garland’s dysfunctional EOIR contained in the recent blockbuster Ohio Immigrant Alliance exposé of outrageous shenanigans @ EOIR under Garland! https://immigrationcourtside.com/2024/03/06/%F0%9F%A4%90-busted-eoir-squelches-ijs-union-administration-moves-to-silence-outspoken-uncensored-critic-of-dysfunctional-court-system-news-comes-on-heels-of/.

Even the White House, which has turned a willfully blind eye to Garland’s poor stewardship over the Immigration Courts, now feels the sting of Garland’s timid “leadership” and lackadaisical approach to “justice at Justice.” And, they don’t like it! Not one bit! See, e.g.,https://www.washingtonpost.com/politics/2024/03/11/hur-biden-garland-classified-white-house-congress/.

On the basis of his robust SOTU performance, I have every confidence that President Biden can more than adequately defend himself from the “Hur report.” Sadly, the same can’t necessarily be said for all the asylum seekers and other immigrants harmed by Garland’s indifference to systemic injustice in his “courts!”

This is the real “immigration crisis” that threatens our legal system and our democracy! 

🇺🇸 Due Process Forever!

PWS

03-12-24

🤮 THE PRESIDENTIAL CANDIDATES ARE FEEDING US FEAR-DRIVEN BS 💩 ON THE BORDER (W/O Meaningful Pushback From the Complicit Media) — Get Some Constructive, Practical, Humane Alternatives From Rev. Craig Mousin and NIJC Policy Director Heidi Altman On The “Lawful Assembly” Podcast! 💡🗽😎⚖️

Rev. Craig Mousin
Rev. Craig Mousin
PHOTO: DePaul Website
Heidi Altman
Heidi Altman
Director of Policy
National Immigrant Justice Center
PHOTO: fcnl.org

Craig on Linkedin:

Instead of listening to our two primary presidential contenders vie over which one is tougher on immigration, let’s consider reframing the debate for a meaningful immigration reform that benefits our nation instead of depriving it of resources wasted on ineffective enforcement policies:

Let’s Reshape Immigration Policy

 Tweet pastedGraphic.png Share pastedGraphic_1.png Share

Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:

Let’s Reshape Immigration Policy

Lawful Assembly

FOLLOW

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38:45

 

https://podcasts.apple.com/us/podcast/lets-reshape-immigration-policy/id1724492762?i=1000648467773

  • Show Notes 

Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:

https://immigrantjustice.org/staff/blog/humane-solutions-work-10-ways-biden-administration-should-reshape-immigration-policy

https://www.latimes.com/opinion/story/2024-02-29/immigration-crisis-border-migrants-united-states-mexico-election-biden-trump

**************************

Listen to the podcast and get a copy of NIJC’s “ 10 points” at the above links.

Thanks, Craig, for highlighting the work of my friend and former Georgetown Law colleague Heidi Altman, Director of Policy at NIJC. Heidi is the embodiment of what real leadership, innovation, humane, creative thought on immigration and the border looks like. She stands in dramatic contrast to the pathetic fear mongering (Trump) and fear of standing up for values (Biden) “leadership” coming from our candidates and reflected in the failure of politicos of both parties to embrace humane, cooperative, beneficial solutions for those seeking asylum at the border.

Heidi is a particularly great representative and leadership role model for Women’s History Month.  

I had additional thoughts on this podcast:

  • Better judges, not just more judges. To be effective and efficient, EOIR judges at both levels must be recognized experts in asylum, human rights, and due process who are not afraid to set positive precedents, grant protection to those who qualify under a properly generous interpretation of the law, simplify evidentiary requirements and state them in clear, practical terms, establish and enforce best practices, and steadfastly oppose the political abuse of the Immigration Courts as “deterrents” or as extensions of DHS enforcement. The failure of Garland to clean house at EOIR, particularly the BIA, and of Mayorkas to do likewise at the Asylum Office has been a national disaster driving much of the “disorder at the border.”
  • Incorporate “Judges Without Borders” into the solutions. See  https://immigrationcourtside.com/wp-admin/about.php. It’s a great concept waiting to happen!
  • Invest in VIISTA Villanova and other innovative programs to expand pro bono and low bono representation. See https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html. Reach beyond lawyers and NGOs to train students, retirees, social justice advocates, and “ordinary citizens” who want to help by becoming “Accredited Representatives” for “Recognized Organizations” and represent asylum seekers before the AO and EOIR. The programs is top-notch, online, and “scalable.” The Biden Administration’s failure to tap into it and “leverage” it is another dramatic failure of leadership.
  • Better leadership needed in the Biden Administration. As we have seen over the last three years, all the great ideas (and there is a plethora of them) in the world are meaningless without the dynamic, courageous, effective leadership to make it happen! Garland, Mayorkas, the White House Domestic Policy Office, and the Biden Campaign are dramatic negative examples of folks who lack  the hands-on expertise, courage, creativity, and skills to lead on effective administrative immigration reform. I endorse Heidi’s proposal to create a White House Task Force. But, without expert, dynamic, empowered leadership, that Task Force will be ineffective. (Take it from me, over 35-years in the USG, I was on lots of “task forces” and other “action/study groups” whose voluminous reports and well-meaning proposals went directly into a dusty file cabinet or paper shredder.) Think Julian Castro, Dean Kevin Johnson, Judge Dana Marks, Professor Karen Musalo, Beatriz Lopez, Professor Michele Pistone, Anna Gallagher, Camille Mackler, Professor Stephen Yale-Loehr, Heidi Altman, Alex Aleinikoff, Mary Meg McCarthy, Paula Fitzgerald, et al — any of these folks, or a combination, or other “battle tested experts” like them would be head and shoulders over the inept gang advising on and “implementing” (and I use this term loosely) immigration policy for the Administration and the campaign. Leadership counts! And, time’s a wasting to start fixing this asylum system before the election!
  • Acquiescence gets Dems the same place as activist racism. I “get” that the nativist border agenda now being shoved down our throats by both campaigns is driven by GOP fear-mongering and Dem acquiescence. That’s classic Jim Crow! I doubt that every White person south of the Mason-Dixon Line during my youth was overtly racist. Yet, a whole bunch of them were happy to acquiesce in segregation (and worse) because it served their political, social, or business purposes. For example, ”I’ve personally got nothing against Blacks, but if I hired one at my store all my business would go elsewhere.” In calling for “bipartisan” joining with the Trump-generated racist proposal to “close the  border,” Biden and many of his supporters are basically endorsing a lawless, cruel, anti-humanitarian program that couldn’t succeed if enacted. Does that he might be doing it as an act of “political strategy,” “shifting the blame,” or “one-upmanship,” rather than “genuine” racism, xenophobia, and hate, like Trump and MAGA nation, somehow make it more palatable? Not to me!
  • Stop the candidate’s negative campaigning. If Joe can’t think of anything better to say about human rights and the border than to point fingers at the GOP and try and match Trump’s cruelty, lawlessness, and stupidity on the issue, better he say nothing at all. 
  • Don’t get suckered by “whataboutism.” Undoubtedly, there are those in our community genuinely concerned that helping asylum seekers resettle and succeed will deflect resources and attention from existing problems like homelessness and poverty. Nevertheless, few, if any, of my friends and acquaintances who have actually spent their lives, or substantial portions thereof, helping the less fortunate in our communities express this fear. They believe that that if we treat all of our fellow humans as humans, we can expand opportunities and economic activities across the board so that there will be enough for everyone. It’s a  derivation of something we say every Sunday at the community church we attend: “All are welcome at Christ’s table.” Also, asylum seekers and other migrants disproportionately give back to communities, particularly low income communities, rural communities, or others in need. By contrast, many of those raising these fears are the same GOP folks who steadfastly want to cut meals for kids, slash after-school programs, defund proven-to-work programs that reduce poverty, and restrict or limit other existing aid programs. It’s not like these folks would “repurpose” any of the very limited funds spent on assisting migrants to helping the homeless or the less fortunate. No, they would almost certainly spend it on more deadly, yet ineffective walls, “civil” prisons, unnecessary tax cuts for the wealthy, and/or more counterproductive, wasteful, costly border militarization. Don’t get suckered by their “crocodile tears” for the poor and needy!

Contrary to the BS 💩 that is peddled every day by the presidential candidates, spineless politicos of both parties, and the mainstream media, the border is solvable with common sense, humane, innovative legal reforms. More cruel, wasteful, and essentially mindless enforcement and restriction is NOT the answer, nor will it ever be!

🇺🇸 Due Process Forever!

PWS

03-10-24

🗽 THE HUMANITY, DECENCY, HOPE, & PATIENCE OF THOSE SEEKING LEGAL REFUGE @ OUR BORDER CONTRASTS WITH THE BIPARTISAN LIES, MYTHS, & BIAS DRIVING OUR HORRIBLE POLITICAL “DIALOGUE” — “U.S. politicians treat migrants as dangerous, flat, or faceless, and claim enforcement is the only solution to the ‘crisis.’ A shelter in Nogales offers a different perspective.” — Todd Miller @ The Border Chronicle Reports From South Of The Border!

 

Todd Miller
Todd Miller
Border Correspondent
Border Chronicle
PHOTO: Coder Chron

https://open.substack.com/pub/theborderchronicle/p/the-garden-at-the-migrant-shelter?r=1se78m&utm_medium=ios

Todd writes:

When we entered the garden, Tomás’s face relaxed. We were at the Casa de la Misericordia de Todas las Naciones in Nogales, Sonora, Mexico, where he had resided for six months with his wife, Cristina, and three children. Before we entered the garden, Cristina and Tomás told me that a criminal group had abducted their 20-year-old son, Carlos, in the small rural community where they lived in the mountains of the Mexican state of Guerrero. Carlos returned to the family, but they knew he was under threat, that the whole family was in danger. As we spoke under the shade of a large tree, children raced around and played on a swing set in front of a yellow building that housed primarily mothers with young children. About 120 people, including entire families, were staying at this shelter, which was designed for people seeking asylum. Cristina did most of the talking, but at the end Tomás asked me if I wanted to see the garden. Cristina had to return to the kitchen, which was her responsibility this week. For his part, Tomás had been the encargado of the garden, in charge of it, he told me, since they arrived.

He showed me the radishes, the calabazas, the zanahoria. He showed me what remained of the tomatoes and chiles that got blasted by the cold. He showed me the lombrices, earthworms burrowing in the composting soil topped with banana peels. As he showed me all the plants, Tomás talked about how much he loved farming, how much he loved planting seeds, how much he liked caring for these plants and watching them grow. In Guerrero he had tended his milpa (small parcel of land) of squash, beans, and corn every day. As he spoke, I tried to envision his rural mountain community; over the years I have met many campesinos, small farmers, across southern Mexico, in his state of Guerrero, in Oaxaca, in Chiapas. Having knelt in the soil of the milpas before, I understood how this small garden in Nogales was like a sanctuary, especially in the face of a scary situation, as Cristina and Tomás had told me, away from home, away from your roots, your child’s life in danger, wondering if you would get asylum. When they arrived six months earlier, they applied for asylum on the glitchy, confusing, and difficult-to-use CBP One app with the help of staff at the Casa, a service they offer to all people staying in the shelter. Tomás told me that when things got stressful, “I come here to the garden. And the stress goes away.” He made a motion with his hand. His hand then touched the soil, searching for the plants. He looked up, and his face was serene.

From where we talked in the garden, we had a sweeping view of Nogales. The Casa is perched on a hill above a working-class neighborhood called Bella Vista, where the bustle often starts in the early morning as maquila workers head to the factories. For line workers making Samsonite suitcases, General Electric lightbulbs, or Masterlocks, the wages are a pittance—giving Nogales a feel of a city in constant strain and struggle.

Also, from the Casa you can look north toward the border with Arizona. Last Thursday, President Joe Biden and Donald Trump came to the border in “dueling visits,” but in faraway Brownsville and Eagle Pass, Texas. People like Tomás and Cristina and family were in the news again, not as their full human selves but as flat numbers and statistics. The “narrative of overwhelm,” as Erika Pinheiro put to The Border Chronicle in an audio interview, was full steam ahead. Alarmist rhetoric filled the airwaves, including the omnipresent “record numbers” of people crossing in every report. In Brownsville, in a proposal that might have seemed like fiction if we went back in time to the 2020 campaign, Biden challenged Trump to “show a little spine” and help him tighten the border by supporting the enforcement-heavy border bill shot down by the Senate in early February. For Trump’s part, he referred to people crossing the border as the “Joe Biden invasion”and as a “vicious violation to our country.” At this point in a heating-up U.S. presidential campaign, the age-old depiction of migrants as either dangerous or a mass of faceless numbers arriving to the benevolent U.S. doorstep was in full effect. More enforcement, both sides were clearly stating, was the solution.

Tomás knelt down to the soil. He showed me the garlic and onions he had planted as an experiment. “Do you want to try a radish?” he asked me in Spanish. “Yes,” I said, “please.” He plucked a radish out of the soil. I wiped off the soil and took a bite. I don’t know if it was because I was hungry (I was), or if it was the force of the stories Tomás and Cristina had shared (probably that too), or just watching Tomás work the soil, tenderly touch the plants, his face soft and concentrated, the perils of asylum-seeker limbo temporarily forgotten, that I knew that this type of care would render something delicious. The radish was so succulent that I finished it too quickly, but I was too bashful to ask for another, even though I wanted one. We could still hear the voices of playing kids coming up from below; there were people from all over Mexico, from Central America, from Peru, Colombia, and from across the world like China, Iran, and Senegal. Before talking with Tomás and Cristina, I visited the tortillería, where three young men worked making tortillas. I visited a workshop where people made weavings and other art projects. 

I visited a gigantic bread oven—where people from different countries baked bread in their own traditions, and I visited the kitchen and dining room where banners celebrating the Chinese New Year hung from the walls. One new year celebratory sign read in English, “Be patient, Be light, Be love, Be you!” Another read in Spanish, “La amabilidad es la llave de todas las fortunas” (Friendliness is the key to all fortune). 

The shelter is run by its director, Alma Angélica Macías, but the effort was a community one, and a binational one. I was there with a small group of people from the Good Shepherd UCC church in Arizona who bring food to the Casa every Thursday. And given that the shelter allows people to stay as long as the asylum process takes, the Casa had a feel of a multinational hub where people of different nationalities had formed deep bonds, and as I stood there with Tomás, I was moved by this beautiful, alternative view of the border that rarely sees the light of day in the media.

Right as I was about to leave the garden, Tomás’s 20-year-old son came to ask him a question. Tomás introduced me to Carlos, and as I looked into his young face, I remembered the threats to his life that had led them there. As I stood waiting, they talked among themselves, and I thought again about the presidential race, the constant push for more border enforcement, the rightward drift of that debate, the talk that the U.S. government was going to clamp down even harder on asylum seekers—all while watching the father and son talk in calm, sweet tones in that lovely garden. When they were finished, there was a pause. One last moment to take in the garden and the sweeping view around us. I used the pause to thank Tomás for showing me the garden, for showing me his gift with the land. I didn’t know what to say except that I thought it was beautiful and that I felt inspired. And then—after a quick, tender, and vulnerable look to young Carlos, who was still by his side—Tomás told me, as if he didn’t want to have to say it, “I hope they give us asylum.”

*For the story, I altered the names of the family from Guerrero at the request of the shelter.

************************

Click the above link for the original article with Todd’s wonderful border photography!

As I often say, we can diminish ourselves as a nation, (as both Trump and Biden are doing with their “misleading dehumanizing rhetoric” and spineless “scapegoating”), but it won’t stop human migration. Dehumanization and victimization in the end highlight the humanity of the victims while diminishing the dehumanizers.

Notably, this family has spent months trying “to do things the right way” by scheduling an appointment through the woefully inadequate “CBP One App” and appointment system. Yet, it appears that they have not even been given the interview to which they are entitled by law, nor have they been given a date for the fair merits adjudication they deserve! 

The immense backlogs that everyone complains about (and which actually hurt legitimate asylum seekers like Tomás and his family) are largely self-created by years of USG over-investment in ridiculously expensive and ultimately ineffective enforcement accompanied by grotesque “under-investment” in timely, professional, and humane screening and adjudication of claims. 

Both Biden and Trump know or should know that “the app” and the system it engenders are hopelessly defective. Yet, rather than moving to fix it (Biden) or urging supporters to invest in fixing it (Trump), both candidates shamelessly dump on the victims of their joint misfeasance and urge “further punishment” of those victims, apparently to “CTAs” for their own legal and moral failures. 

Such is the “bogus border debate” — actually not a “debate” but rather a “one-sided nationalistic lie-fest” highlighted by obscene finger-pointing and journalistic malpractice on a catastrophic scale. All this happens with human lives and the very future of our democratic republic hanging in the balance!

Eventually, the judgement history on this disingenuous “bipartisan exercise in neofascism” will fall on the shameless politicos, the complicit media, and those who fail to call them out for their lies and misdeeds. Whether that judgement will come in time to save Tomás, Cristina, Carlos, and others like them seeking only justice and humanity from our nation is a different question. Like Tomás, one can only hope! 

🇺🇸 Due Process Forever!

PWS

03-08-24

🤐 BUSTED! — EOIR SQUELCHES IJS’ UNION — Administration Moves To Silence Outspoken, Uncensored Critic Of Dysfunctional Court System! — NEWS COMES ON HEELS OF BLOCKBUSTER REPORT ON SYSTEMIC RACISM, BIAS, AND HORRIBLY FLAWED JUSTICE AT EOIR!🤯

Censorship
“AG Garland & EOIR Executives holding a strategy session.”
“CENSORSHIP” “PUBLIC SENTIMENT” “NATIONAL CENSOR” “LOCAL CENSOR” “STATE CENSOR” art by Holmet – Motion Picture Magazine (Feb-May 1916) (IA motionpicturemag111moti) (page 151 crop).jpg
Public Domain

Elliot Spagat reports for AP:

https://apnews.com/article/immigration-courts-judges-union-backlog-751f55a0ae60af5c04d6c0ca420d36ae

SAN DIEGO (AP) — A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.

The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about “the pressures of the migrant crisis on the federal immigration court system.”

The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”

The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges’ union. He said the order contradicted President Joe Biden’s “union-friendly” position and vowed to fight it.

“It’s outrageous, it’s un-American,” said Biggs. “Why are they trying to silence these judges?”

. . . .

**************************

Read the complete article at the above link.

Ukase
Ukase
Public Domain

Courtesy of my friend Dan Kowalski over at LexisNexis, here’s the text of what is being called the “McNulty Ukase:”

From: Chief Immigration Judge, OCIJ (EOIR)
Sent: Thursday, February 15, 2024 11:53 AM
To: Tsankov, Mimi (EOIR) ; Cole, Samuel B. (EOIR)
Cc: Weiss, Daniel H (EOIR) ; Luis, Lisa (EOIR) ; Young, Elizabeth L. (EOIR) ; Anderson, Jill (EOIR) <

Subject: Public Engagements and Speaking Requests

 

Dear Judges Cole and Tsankov:

 

From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately.

 

Thank you,

 

Sheila McNulty

Chief Immigration Judge

Executive Office for Immigration Review • Department of Justice

*******************

It’s perhaps no surprise. EOIR is a badly failing agency with an incredible ever-growing backlog of over 3 million cases, no plan for reducing it, antiquated procedures, a disturbing number of questionably-qualified judges (many holdovers from the Trump era), grotesque decisional inconsistencies, poor leadership, a tragic record of ignoring experts’ recommendations for improvements, and that produces a steady stream of sloppy, poorly-reasoned, or clearly erroneous decisions on the “nuts and bolts” of asylum and immigration law that are regularly “roasted” by Circuit Judges across the political spectrum. 

In this context, their desire to strangle criticism from those actually trying to provide justice and due process, against the odds — the sitting Immigration Judges who see the management and systemic problems on a daily basis — is perhaps understandable, if not defensible.

At least where immigration is involved, the Biden Administration’s rhetoric and promises on being “labor friendly” and supportive of Federal workers is unfortunately reminiscent of its pledge to treat asylum seekers and immigrants fairly and humanely and to distance themselves from the racially-driven xenophobic policies of the Trump Administration.

While the NAIJ may be “gagged,” the fight about working conditions and the unrelenting dysfunction at EOIR is far from over!

Sources close to the NAIJ’s parent union, the IFPTE, tell me that the “campaign to call out this atrocity” is “just getting started.”

In statement issued yesterday, IFPTE President Matt Biggs expressed outrage and raised the possibility that the Administration could face tough Congressional questioning on the gag order, which also applies to communications with legislators and legislative staff:

“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress.  This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”

NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”

“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”

As noted by Biggs, over the years, NAIJ leadership has frequently been asked to testify before Congress and meet with staff as an independent counterpoint to the “party line, everything is under control” nonsense that has become a staple of DOJ politicos and EOIR bureaucrats in administrations of both parties in dealing with the Hill as the backlog continued to explode in plain view!

Although the Biden Administration has curiously shown little hesitation in throwing asylum seekers, human rights, and advocates who were a key support group in 2020 “under the bus” in an ill-advised attempt to “out-Trump-Trump” on stupidity and inhumanity at the border, the IFPTE could be a different animal. Representing more than 80,000 government professionals, the union endorsed  Biden/Harris in 2020.

With a hotly-contested, close election underway, Biden can ill-afford to alienate more key support groups, particularly among organized labor.  Why the “geniuses” in the White House and the Biden/Harris Campaign think that going to war with your base is a great, “winning” strategy, is beyond me! Even Donald Trump recognizes the benefit of energizing behind him a loyal and committed (although horribly misguided) “base!”

*****************

Tellingly, and illustrating this issue’s cosmic importance, the Ohio Immigrant Alliance just released its blockbuster report documenting systemic racism at EOIR entitled “The System Works As Designed: Immigration Law, Courts, & Consequences” —

https://illusionofjustice.org/read/lawcourtsandconsequences

Here’s the Executive Summary:

Executive Summary

This report is based on the experiences of immigrants, lawyers, and immigration court observers, as well as external research. “The System Works as Designed” reveals how U.S. immigration laws, and the courts themselves, were planted on a foundation of white supremacy, power imbalance, and coercive control. For those reasons, they fail to protect human dignity and lives on a daily basis.

While the operations of the immigration courts have frequently been ignored, their outcomes could not be more consequential to immigrants and their loved ones. This report lifts the curtain.

Racism in Immigration Law and Policies

It is clear from the congressional record, and laws themselves, that the Chinese Exclusion Act, Undesirable Aliens Act, Immigration and Nationality Acts of 1924 and 1952, and other laws played on racial and ethnic stereotypes to limit mobility and long-term settlement of non-white immigrants.

The Immigration and Nationality Act of 1965 attempted to address some imbalances, but the Illegal Immigration Reform and Immigrant Responsibility Act basically broke the already contradictory set of laws, making them a landmine for immigrants attempting to seek safety or build new lives here. The REAL ID Act and other post-9/11 laws and policies tightened the vise.

Policy choices made by presidents from every modern administration have attempted to coerce, repress, and reject migration, a basic human survival act, instead of building safe paths people can use.

Death Penalty Consequences, Traffic Court Rules

The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect. Dysfunctional elements include:

A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.

Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.

4

Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.

Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.

Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban.

Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual’s evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.

Consider the experience of M.D. a Black Mauritanian man seeking asylum in the U.S. after the late 1980s/early 1990s genocide. An immigration judge questioned his credibility because M.D. did not provide “evidence” that he is Black and Fulani, a persecuted group in Mauritania. M.D. addressed the court, speaking in Fulani, and said, “I am the evidence. I speak Fulani and I am Black.”

The English transcript of M.D.’s hearing is riddled with “(unintelligible)” in place of the names of relatives and locations where important events, such as the murder of his father, took place. There was an interpreter in the room who could have spelled the words out to make the record more accurate and credible. Instead, the record shows big holes in place of material facts, while M.D. was accused of not providing “proof” that he is Black, deemed not credible, denied asylum.

In another case, a Black man seeking asylum was found “not credible” because his interpreter first used the word “canoe” when describing his method of escape, and later said “little boat.” But in his language and, one can argue, in common English, they are the same thing.

Situations like these, memorialized in the case record, are carried into the appeals process where rehearings typically do not take place, compounding the injustices of these mistakes.

Many of the report’s observations echo some aspects my own writings and public speeches over the years since I retired from the bench in June 2016. For example, here’s my speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“ from from an FBA Conference in Austin, Texas in May 2019: 

https://immigrationcourtside.com/wp-content/uploads/2019/05/FBA-Austin-Central-America-—-Intro.docx

While I was speaking during the Trump Administration, sadly, many of my observations remain equally true today, as the Biden Administration and AG Garland have quite inexcusably failed to rise to the occasion by instituting long-overdue due process and quality control reforms at EOIR. Yet, I am struck by how even then, as today, I found reasons to continue to be proud of the accomplishments of the “New Due Process Army” (“NDPA”) and to urge others to continue to  believe that the “light of due process will eventually be relit” at EOIR and that history will deal harshly with the xenophobic urges and anti-asylum attitudes that too often drive policy in administrations of both parties:

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been  granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies. That’s what the “New Due Process Army” is all about.

That brings me back to two of my “key takeaways” from the Ohio Immigrant Alliance Report.

First: “Withholding is a true limbo status, though better than being sent back to certain death.” Skillfully and aggressively using the system to save lives, in any way possible, is job one. A life saved is always a victory!

Second, as the report concludes:

Solutions exist, but they require policymakers and legislators to listen to the people with direct, personal experience. Ramata, cited earlier in this report, suggests quicker approval of cases found credible at the outset. Aliou wants judges to put more stock in migrants’ testimony, understanding that persecuting governments are not credible sources about their own abuse. Jennifer, one of the immigration lawyers we interviewed, suggested that Black immigrant organizations and the American Immigration Lawyers Association be involved in crafting a new direction, citing their extensive expertise with how the system works—and fails people.

Bill, another immigration lawyer interviewed for this report, suggests taking a page from the refugee resettlement program when it comes to verifying facts about a case. “Social workers and private investigators [could] interview people and research documents and try to … verify whether [they’re] telling the truth or not,” he said. Bill suggests employment counselors, ESL teachers, and others with specialized expertise could also assist in the processing of cases.

Most importantly, the asylum and immigration system must be reoriented toward prioritizing safety and resettlement, rather than deportation as the default outcome. The forthcoming report, “Behind Closed Doors: Black Migrants and the Hidden Injustices of US Immigration Courts,” will explore these and other solutions.

As I have observed many times, despite the “national BS” on asylum and immigration being traded by Trump and Biden, and the legislative gridlock, there are still plenty of readily available, non-legislative solutions out there that would dramatically improve due process, justice, and the life-saving capacity of the EOIR system. While no single one of them is a “silver bullet” that would solve all problems overnight, each is an important step in the right direction. Taken together, they would substantially improve the quality and quality of justice overall in our U.S. legal system and, perhaps, in the process, save our republic from demise. 

🇺🇸 Due Process Forever!

PWS

03-06-24

This article has been revised to include an excerpt from the IFPTE press release.

FULL DISCLOSURE: I am a proud retired member of the NAIJ.

⚾️☹️ BIA SPRING TRAINING: 3 Strikes, 0 Outs, 2 Many Errors — CAs Rough Up Garland’s Minions On Burden Of Proof, Credibility, Sloppy Analysis — Dan Kowalski Reports On The “Bush League” Of American Justice! 🤮 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

1) Blown Burden Of Proof!

CA2 Remand: Gao v. Garland

https://ww3.ca2.uscourts.gov/decisions/isysquery/2408dc12-a4f3-4488-ab76-2d44c22fc0c4/10/doc/20-2802_so.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/unpub-ca2-remand-gao-v-garland

“The IJ’s conclusion that Gao failed to meet her burden of proof is based on the lack of sufficient corroborating evidence. As mentioned above, where, as here, the petitioner’s testimony is deemed credible, but the IJ finds that additional corroborating evidence is necessary to satisfy the burden of proof, the IJ is required to “(1) point to specific pieces of missing evidence and show that it was reasonably available, (2) give the [petitioner] an opportunity to explain the omission, and (3) assess any explanation given.” Wei Sun, 883 F.3d at 31; see also Pinel-Gomez, 52 F.4th at 529. Because the IJ failed to comply with these requirements here, we remand for the agency to reconsider Gao’s claim that she will be singled out for persecution if she returns to China.”

[Hats off to Gerald Karikari!]

Gerald Kerikeri ESQUIRE
Gerald Karikari ESQUIRE

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

Free Daily Blog: www.bibdaily.com

2) Incredible Adverse Credibility

Unpub. CA2 Remand: Berhe v. Garland

https://ww3.ca2.uscourts.gov/decisions/isysquery/f69a12d6-cfb3-437d-bbb4-079ea256b95b/1/doc/21-6042_so.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/unpub-ca2-remand-berhe-v-garland

“Berhe asserted that the Eritrean military detained and beat him because he complained about conditions during his mandatory military service and because of his perceived anti-government political opinion. The agency’s adverse credibility determination is not supported by substantial evidence. … Respondent’s motion to transfer venue is DENIED, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”

[Hats off to Superlitigator Ben Winograd!]

Ben Winograd
Ben Winograd, Esquire

3. “Comedy Of Errors” In Life Or Death Case

CA7 on Reinstatement, Jurisdiction, Standard of Review: F.J.A.P. v. Garland

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D02-27/C:21-2284:J:St__Eve:aut:T:fnOp:N:3174081:S:0

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca7-on-reinstatement-jurisdiction-standard-of-review-f-j-a-p-v-garland

“Based on the statutory language, structure, and context of § 1252, we conclude that a reinstated order of removal is not final for purposes of judicial review until the agency has completed withholding proceedings. Only when those proceedings conclude, if the noncitizen is eligible for that review, has the agency finalized all mandatory review and “fully determined” the noncitizen’s fate. Arostegui-Maldonado, 75 F.4th at 1140 (quoting Luna-Garcia, 777 F.3d at 1185). A contrary conclusion would contravene the express intent of Congress. Our own circuit’s precedent is consistent with this interpretation, having long treated reinstated orders of removal as final once withholding proceedings are complete. We see no reason to upset that precedent. Because F.J.A.P. filed his petition within 30 days of the completion of his CAT proceedings, we have jurisdiction to hear his petition and proceed to the merits. … Here, the Board did not just declare an absence of evidence; it actively ignored the evidence relied upon by the immigration judge. … The Board reweighed and discounted evidence in F.J.A.P.’s case instead of properly disputing that evidence with contrary facts from the record. … The Board did not explain how the immigration judge’s conclusion that F.J.A.P. would likely be tortured for having “the audacity to file a police report” is illogical, implausible, or lacks support. The Board did not explain why, in a country where gangs control much of the government—an assertion which was supported in the record by the State Department’s country report—an individual complaint about the gang made to the gang-controlled police would not put a target on someone’s back. … For these reasons, we find that the Board erred by failing to apply the required clear error standard of review. Because the Board failed to apply the correct standard of review, we need not reach whether substantial evidence supported its conclusion. In light of this error, we grant F.J.A.P.’s petition and remand to the Board of Immigration Appeals for reconsideration of the immigration judge’s decision under the correct standard of review consistent with this opinion.”

[Hats off to Harry S. Graver and Chuck Roth!  Listen to the oral argument here.]

 

Harry S. Graver, Esquire
Harry S. Graver, Esquire
Jones Day
D.C.
Chuck Roth, Esquire
Chuck Roth, Esquire
NIJC

 

*****************

Great, if disturbing, examples of the “culture of any reason to deny” that flourishes in too many places in Garland’s EOIR and the poor leadership from the BIA! All these respondents were “garlanded,” and only saved by their outstanding lawyers and the Circuits!

Congrats to the attorneys involved in all these cases. Gerald Karikari appeared before me at the “Legacy” Arlington Immigration Court. Ben Winograd is a superstar appellate litigator. Harry S. Graver is an attorney in the DC Office of Jones Day, where I was a partner in the 1990s. Chuck Roth is a “superlitigator” for the NIJC!

The season’s outlook for justice in Manager Merrick Garland’s EOIR:

Gloomy 😪😢

In the often other-worldly, fact-free, one-sided “debate” about immigration and asylum, we must remember that severe over-denial, abuse of in absentia orders, “courts in prison,” and lack of positive precedents in Garland’s EOIR badly distort the success rate for asylum seekers that the Government often throws around. Because of Garland’s failure to legitimize EOIR asylum adjudications by cleaning house, replacing unqualified leadership, and insisting on judges with demonstrated asylum expertise and reputations for fairness, we actually have little idea how asylum seekers would fare in a fair and functional system where due process and decisional excellence were required. 

Suffice it to say that significantly more asylum cases would be granted in a more timely manner. We just don’t know how many more! 

🇺🇸 Due Process Forever!

PWS

02-29-24

🏴‍☠️ GARLAND BIA’S MANTRA: “WHEN IN DOUBT, THROW ‘EM OUT!” 🤮 — I Dissent From The Wrong Decision In Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)!

Star Chamber Justice
The Garland BIA’s tortured pro-DHS logic is a constant trauma for immigration practitioners!

Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)

https://www.justice.gov/d9/2024-02/4073.pdf

BIA HEADNOTE:

Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.

FOR THE RESPONDENT: William M. Sharma-Crawford, Esquire, Kansas City,

Missouri

BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration

Judges.

PETTY, Appellate Immigration Judge: [Opinion]

******************************

SCHMIDT, Judge of the Round Table, dissenting:

I dissent.

This respondent moves to reopen and terminate proceedings. His motion is biased on a valid order of a Kansas State Judge vacating the conviction that was the basis for his removal. I would grant the motion and terminate proceedings.

Contrary to the panel’s claim, the basis for the respondent’s motion to vacate the conviction in state court is clear on this record: the respondent was ineffectively advised by counsel during his criminal proceedings where he pled guilty. Notably, the U.S. Supreme Court has found that failing to properly advise a defendant of the immigration consequences of his conviction is ineffective assistance under the sixth amendment to the Constitution. Padilla v. Kentucky, 559 U.S. 356 (2010).

According to the record, the prosecuting attorney agreed with the respondent’s assertion. On the basis of that agreement and his review of the record, the state judge granted the motion. Thus the record shows that the reason for the action was a violation of the respondent’s sixth amendment rights during his criminal proceedings. There is no evidence that the state court acted “solely for immigration purposes” as the BIA found in Matter of Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v Gonzales, 465 F.3d 263 (6th Cir. 2006).  Therefore, the panel’s reliance on Pickering is wrong.

Because there is no conviction supporting the DHS’s charge of removability, they have failed to meet their burden of proof. Consequently, these proceedings must be terminated.

Even if there were ambiguity in the state judge’s order, I would reach the same result. The INA places the burden of establishing removability on DHS by a very high “clear and convincing evidence” standard. INA section 240(c)(3)(A). Consequently, any ambiguities in the DHS’s proof must be construed against them. Therefore, even if I found some ambiguity as to the reason for the state judge’s order, the DHS would still fail to sustain their burden and proceedings should be terminated.

There is no evidence in this record that the state judge acted solely to eliminate immigration bars or for other rehabilitative purposes as was the case in Pickering. Therefore Pickering does not control. To get around this defect, the panel essentially invents a “presumption of immigration rehabilitative purposes” to fill the gap in their reasoning and save the DHS’s case. This attempt to overrule the statutory burden placed on DHS is clearly inappropriate.

For the foregoing reasons the DHS has not established the respondent’s removability by clear and convincing evidence. Therefore, I would grant the respondent’s motion to reopen and terminate proceedings. Consequently, I dissent from the panel’s unjustified denial of the motion.

🇺🇸 Due Process Forever

PWS

02-26-24

⚖️ 25 TIPS FOR JUDICIAL LAW CLERKS

Hon. Kuyomars “Q” Golparvar
Hon. Kuyomars “Q” Golparvar
U.S. Immigration Judge
Baltimore, MD
Adjunct Professor of Law
GW Law
PHOTO: GW Law

Recently, I had the privilege of speaking to Judge/Professor “Q” Golparvar’s class on “Legal Drafting for Future Judicial Law Clerks” at GW Law. Here’s my list of tips that’s I discussed with that class:

NOTES FOR JLC CLASS

1) “Make me look smart” (please)

2)  Know and respect the difference between Judge & JLC

3)  Learn your Judge’s style and persona, likes, and “pet peeves”

4)  Know and write for your audience

5) Use outlines if possible

6) Write clearly, succinctly, to the point 

7) Use “active voice” — if your Judge is OK with it

8) Avoid boilerplate, legalisms, and “string citations”

9) Read the cases you cite

10) Be meticulously accurate — know where every “fact” in the fact-finding section came from and double check it

11)  Be respectful to parties, counsel, witnesses, and especially court clerks and other support personnel

12) Avoid stereotypical references

13) Follow “Bluebook” or whatever modified citation system your court uses

14) Don’t be afraid to ask

15) Know and follow applicable precedent

16) Yell before your Judge walks off a cliff

17) Accept criticism with grace, goodwill, and appreciation

18) Be a student and a teacher

19) Never miss a deadline without giving advance notice and asking permission

20) Write “from the issue”

21) Incorporate helpful material and arguments from the parties that the Judge agrees with

22) Proofread, proofread, proofread, and then proofread again

23) Respect confidentiality and ethics

24) Be a good “sounding board”

25) Why I love JLCs, how they changed my court experience for the better, and why they enhance due process!  

*****************************

This was a great class. It reminded me of all the great JLCs and interns who worked at the “Legacy” Arlington Immigration and my former students at Georgetown Law, many of whom have gone on to leadership positions working for social justice, including some who are now Immigration Judges. 

It also reminded me of this article by Nicholas Bednar about how providing a JLC for each Immigration Judge would improve quality and produce better results for respondents and asylum seekers at EOIR. https://immigrationcourtside.com/2022/08/31/%E2%98%A0%EF%B8%8F%E2%9A%96%EF%B8%8Ffailng-justice-immigration-judges-%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F-need-individual-law-clerks-not-more-falls-church-bureaucracy-failed/.

While there has been progress in some courts, others remain far below the optimal 1:1 ratio of IJs to JLCs, some far below, as ridiculous as 8:1! Garland has failed to “harvest this low hanging fruit” in improving the quality of justice in his courts!

Congress and the Administration spend billions on cruel and ineffective immigration enforcement. Yet, they fail to invest the much more modest amounts that would improve the quality of justice for immigrants! It’s a national disgrace that somehow “flies below the radar screen” of the media and political pundits!

Thanks again to Judge/Professor Q for inviting me, for teaching the next generation, and for your career in “applied scholarship!”

🇺🇸 Due Process Forever!

PWS

02-25-24

🇺🇸⚖️🗽👨🏻‍⚖️😎 JUDGING: WHAT MADE IT ALL WORTHWHILE!

From my inbox:

Greetings & invitation to my father’s celebration of life

Dear Honorable Judge Schmidt,

I am so glad that Laura provided me with your contact – and hope all is well with you!

Laura likely mentioned this to you already; you were my father’s (Bing Li) judge in 2013 when he was placed behind bars at Rappahannock. Time truly flies – it is hard to believe that a decade has already gone by. But the impact that you’ve made – the decision to give our family a fighting chance to stay together in this country – will always be of life-changing significance. In the ten years since, I graduated from Princeton University with a degree in Chemistry and am now a junior engagement management at McKinsey driving energy transition work in Houston. All of this is possible thanks to the faith and fairness you’ve given my father during his most critical time.

Sadly, my father passed away to Stage IV Colon Cancer during the height of COVID-19. Long overdue, we’re finally able to plan a celebration of life at the National Club Press this Friday, Feb. 16th, and I would like to cordially invite you as my guest. It would be an enormous privilege to have you there, and I sincerely look forward to the opportunity of conveying to you, in-person, the consequential difference you made for our family. On that note, before my father passed away, he was able to compile his diaries from Rappahannock in which your name had come up a number of times. I will be reading some of his excerpts during the event.

Bing Li
Bing Li

 

In either case, truly, truly appreciate your time and consideration, Judge Schmidt! If Friday evening does not end up working out for you, I would love it if you have time for me to pay you a visit sometime in the near future when I’m next in DC!

Please take great care and look forward to your thoughts!

Best,

Jessica Li

*********************

The “little things” we do make a big difference.

Thanks so much for your kind words and allowing me to share this Jessica. Condolences to you and your family. And, congratulations on your family’s stellar contributions to America. I know your father must have been so proud of your accomplishments. It’s an honor to have played a role in making it possible!

🇺🇸 Due Process Forever!

PWS

02-19-24

⚖️👩🏾‍⚖️💡FIXING THE IMMIGRATION COURTS! 👨‍🔧 — Preoccupied With Nativist Schemes & Expensive, Cruel, Wasteful, & Demonstrably Counterproductive Mega-Enforcement Gimmicks, Neither Congress Nor The Administration Has Done Realistic Planning For Eliminating The Immigration Court Backlog! — So Don & Brendan Kerwin Have Done Their Work For Them — Their “Interactive Toolbox” 🧰 Is Now Available To EVERYONE Right Here!

Donald M. Kerwin
Donald M. Kerwin
Senior Researcher, Keough School of Global Affairs, University of Notre Dame

https://journals.sagepub.com/doi/10.1177/23315024241226645

Executive Summary

This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.

********************

Wow! This is beyond amazing! Kudos and thanks to Don and Brendan for this incredibly helpful and informative analytical tool. Get the full report and access to all the charts and interactive features at the above link!

Just yesterday, my friend, Arizona “practical humanitarian” Robb Victor, was asking about how legislators and policy makers could do better planning for hiring Immigration Judges and Asylum Officers to reduce the backlog and address processing problems at the border. This is for you, Robb!

As Don and Brendan cogently point out, hiring alone can’t solve the problem! America needs positive, due-process-oriented, reforms to our legal immigration system embracing the reality and the economic power of robust orderly refugee and asylum acceptance and increases in legal immigration of all types. 

The longer we ignore the need for these positive changes, and embrace the dangerous and defective myth that we can or should continue the failed program of attempting to enforce our way out of the migration realities and opportunities of the 21st century, the longer the disorder and grotesque waste of human lives and fiscal resources by our nation will continue.

And, of course, the innovative, low budget, potentially high-impact “Judges Without Borders” proposal by Judge Tom Lister and me should be part of any legislative package to improve the asylum system! See https://immigrationcourtside.com/2023/12/13/%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-%E2%9A%96%EF%B8%8F%F0%9F%97%BDjudges-without-borders-an-innovative-op/.

Why not plan for success rather than investing in failure? As my friend Robb says, “give peace a chance!”✌️ 

🇺🇸 Due Process Forever!

PWS

02-18-24

  

🏴‍☠️ THIS WEEK IN “GARLANDING” — “What Me Worry” AG Attains “Verb Status,” Pisses Off WH, & More Tales Of Woe From The Land Where Justice Goes To Die!”

Alfred E. Neumann
Merrick Garland doesn’t worry about injustice in his courts! But, YOU should PHOTO: Wikipedia Commons

THIS WEEK IN “GARLANDING” — True Tales From The “Twilight Zone” Of American Justice!

By Paul Wickham Schmidt

Courtside Exclusive

February17, 2024

garland ( gar’ land) v.t. [garlanded, garlanding] [dv. USAG Merrick Garland via Prof. Laurence Tribe] m. inflict injustice by one in charge, often through inattention, inaction, or dithering. (Ex 1. I pray the judge won’t garland my case. Ex 2. My client was garlanded and deported to death. Ex 3. They will be garlanding asylum applicants at the U.S. border.)

I would love to take full credit for the above verb. But, that honor must go to the inspiring writing of Harvard Professor Laurence Tribe, one of AG Merrick Garland’s former mentors. See https://www.thenewcivilrightsmovement.com/2024/02/gross-abuse-merrick-garlands-former-constitutional-law-professor-is-now-blasting-him/.

By all accounts, President Biden and his White House were outraged this week when they were garlanded by the “Hur report.” Ironically, three years of complaining by some of Biden’s core supporters who helped elect him in 2020 about being systematically “garlanded” at EOIR brought not so much as a raised eyebrow from the WH. Indeed, they might now be viewed as just a preview of Biden’s “Miller Lite” dissing of his supporters and human lives at the border with his inanely enthusiastic support of an attempted human rights “fire sale” by Senate Dems! Obviously, it’s quite a different story when things come full circle and the “chickens finally come home to roost.”

But, enough of that. When we left our DOJ antihero last week he was fresh off paying out $1.2 million of your taxpayer dollars to settle a sexual harassment claim by one of his ex-EOIR employees! See https://immigrationcourtside.com/2024/02/09/%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97-sex-the-courthouse-%F0%9F%A4%AF-a-tragicomic-%F0%9F%8E%AD-series-starring-judge-merrick-garland-dag-lisa-mo/.

You might think that’s hard to top! But, you would be wrong! Let’s get started on this week’s trip around “the land where due process and fundamental fairness fear to tread!” 

  1. No Due Process In The Omaha Immigration Court

The ACLU released it’s report condemning Garland’s Omaha Immigration Court for a plethora of due process abuses. See https://www.aclunebraska.org/en/press-releases/new-report-finds-omaha-immigration-judges-routinely-compromise-peoples-rights.

Among the “lowlights:”

  • The project focused on pretrial hearings that can encompass pleadings, scheduling and other technical matters. The average observed hearing ran under four minutes, a rapid-fire pace to cover all of a hearing’s required steps.

  • Judges advised people of their rights in only 18% of the observed hearings. Most often, this involved reading rights to everyone in a group instead of individually.

  • Immigration courts are required to provide interpretation in the preferred language of the individual appearing at a hearing at no cost to the individual. The court frequently failed to provide Central American Indigenous language interpretation. This impacted roughly four out of five individuals who preferred to speak in a Central American Indigenous language.

  • In about one in five observed hearings, the individual was not represented by an attorney.

Of course, one might wonder why it is the responsibility of the ACLU to ferret out things that Garland should have discovered and corrected himself. But, no matter. Those poor souls whose lives and future are in the hands of the Omaha Immigration Court can expect to be garlanded.

2) Shenanigans in Chicago

Dan Kowalski reports:

IJs hide the ball; find the secret list or lose your case

Friends,

Immigration court practitioners in many cities now face a new hurdle: find, and adhere to, a secret list of IJ procedural preferences (requirements, actually)…posted, in one case, in the “pro bono room” of one court.  NOT online anywhere.  Oh, and it changes frequently, and without warning.  See the attached sample from Chicago.

Practitioners have complained to EOIR, so let’s see what happens.

 

I have a funny feeling that PWS may have a thing or two to say about all this.

DPF!

2024.02.05 – EOIR Chicago IJ Hearing Preference Sheet

Indeed I do, my friend, indeed I do. This one hits “close to home.”

Back in 2006 my friend and Round Table colleague Judge John Gossart of Baltimore headed a group of IJs who took on the monumental task of writing the first Immigration Court Practice Manual (“ICPM”). Based on Judge Gossart’s own “local court rules and best judicial practices” developed over decades, the ICPM built on the success of the award- winning BIA Practice Manual, created and issued during my tenure as BIA Chair. 

One of the key features of the ICPM is that  It superseded and erased all then-existing “local rules.”

Those few of us IJs who did public education events — under the watchful eye of our HQ “handlers” — were encouraged to tout and promote the ICPM as the “definitive guide” to successful practice before the courts, which, of course I dutifully did as reflected in my speeches from those days. I believe we even had “Q&A” sessions with the local immigration bar to promote and explain the ICPM.

Now, after years of gross mismanagement under Trump and Biden, things have come full circle. The oft-conflicting, idiosyncratic, and frequently inaccessible or counterintuitive “local rules” that the ICPM was created to eliminate evidently have returned with a vengeance.

Meanwhile, the very substantial amount of time, resources, credibility, and effort that went into creating, distributing, and implementing the ICPM has been a colossal waste of taxpayer resources because the last two Administrations have failed in their duty to competently and professionally administer EOIR!

And let’s not leave out Congress! If ever there were a need for a new, independent, professional, expert Article I Court System it’s EOIR. Yet, although Dems have introduced bills, the GOP has expressed no interest in Article I, nor has it been a priority for Congressional leadership and the Administration. It wasn’t even “on the radar screen” during the failed Senate “debate” on the immigration system.

Both Chicago Immigration Court practitioners and those IJs, current and past, who devoted their professional time and energy to the ICPM have been garlanded.

3) ADR On Steroids In Virginia

A long-time DMV immigration lawyer told the “Courtside I-Team” this week:

I routinely have MCHs listed as “in person” that are actually by Webex (I had one today). I also have an Individual on Thursday listed as Webex, but I received an email at 4:00 PM today stating that this was an error, and it was actually in person. I replied that I could not attend in person, as I have too many other cases and family issues to rearrange my schedule at the last minute. We’ll see what happens, but all this is typical of an agency that could care less about applicants, practitioners or due process of law. Take care.

For decades, practitioners and experts had been begging DOJ and EOIR to enter the 21st century with automation. Dishearteningly, now that automation has belatedly arrived at EOIR, it’s being used to severely diminish customer service rather than improve it!

It seems that every whim, irrationality, inefficiency, and inconvenience that developed at EOIR over years has now been “automated” to maximize the trauma and stress inflicted on those appearing before these broken courts. As this example points out, that has led to “Aimless Docket Reshuffling (“ADR”) on steroids!”

And here’s why automated ADR is such a powerful tool! Some practitioners have told me that it allows EOIR to unilaterally schedule them to be in three or four different courts at the same time, with almost no notice. Then, it’s up to the lawyer to file individual  “motions to reschedule” to clean up EOIR’s mess. 

Sometimes they are granted, sometimes denied without any rationale. All of this leads to more work and case shuffling but, importantly, without ever getting to the merits of any case! 

Meanwhile, the backlog grows exponentially and the stress levels on the private bar and the staff ratchet up.

There might be surer ways to destroy a court system, but none come immediately to mind. This is garlanding at its best!

4) Another “F” In “Immigration Law 101” From The 3rd Circuit

This from Dan Kowalski at LexisNexis:

CA3 CAT Remand (Somalia) – Herrow v. Atty. Gen.

https://www.govinfo.gov/content/pkg/FR-2024-02-12/pdf/2024-02829.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-cat-remand-somalia—herrow-v-atty-gen

“[W]e conclude that the BIA, in deciding his CAT claim, failed to consider evidence favorable to Herrow. For that reason, we will remand his petition as it applies to that claim. … Herrow claims that the BIA and IJ erred in denying his CAT claim and in finding that (1) he is unlikely to face torture and (2) the Somali government would not acquiesce in such torture. Because the BIA and IJ ignored evidence favorable to Herrow, we will grant his petition in part and remand for a more comprehensive review of the evidence. … To establish a likelihood of future torture, the record must demonstrate an aggregate risk of torture to the noncitizen that exceeds fifty percent. In making this determination, the IJ must address what is likely to happen to the petitioner if removed, and whether “what is likely to happen amount[s] to the legal definition of torture.” In answering these questions here, the BIA and IJ found that Herrow did not demonstrate a likelihood of torture. We conclude, however, that this determination could not have been made if all the evidence presented by Herrow had been properly considered.”

[Hats off to Christopher M. Casazza and Caitlin J. Costello!  Audio of the oral argument is here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

Being wrongfully denied CAT is no small matter, particularly if the USG is threatening to send you to Somalia. Lets get a glimpse of what happens in Somalia, courtesy of the latest report from our State Department:

Government security forces, including NISA and the Puntland Intelligence Agency (PIA), detained boys and adult men in the same facility and threatened, beat, and forced them to confess to crimes, according to Human Rights Watch.  There were reports of rape and sexual abuse by government agents, primarily members of the security forces.  The Human Rights Center, a local nongovernmental organization (NGO), reported two Somaliland police officers, area commissioner Hassan Ismail and Mustafe Yusuf Dheere, raped Nimo Jama Hassan on June 4 in Caynabo (see sections 1.g. and 6).

Al-Shabaab imposed harsh treatment and punishment on persons in areas under its control (see section 1.g.).

Torture and other cruel, inhuman, or degrading treatment or punishment at the hands of clan militias, some of which were government-affiliated, remained frequent.  A strong and widespread culture of impunity continued, due mainly to clan protection of perpetrators and weak government capacity to hold the guilty to account.

You might think that would lead Garland and his subordinates to take extra care to get these cases right. But, you would be wrong. Dead wrong in many cases. “Good enough for government work” is the touchstone of garlanding. 

By all accounts, Garland was a stellar student during his Harvard Law days. But, not so much some of his EOIR judges at the trial and appellate levels, particularly some of the “Sessions/Barr holdovers” who appear to have been appointed to the bench primarily because they were viewed as likely to deny protection without regard to law or facts. (I’ll concede that Barr and Sessions were wrong about some of their appointments who turned out, perhaps against  the odds, to be fair judges.)

Far too many EOIR judges receive “Fs” from the Courts of Appeals on the basics of immigration and asylum law, even though most mistakes never get to the Article III Courts or manage to otherwise wend their way through the system, thereby endangering lives.

Mr. Herrow was garlanded, but survived (at least for now) thanks to the work of his lawyers and the Third Circuit. 

Well, folks, that’s this week’s wrap from Gar-Land, “the land that justice forgot!” But, stay tuned to Courtside for future updates on garlanding and its victims! 

What’s on the horizon: In March, a final report expected from AILA Ohio on systemic racism at EOIR! Should be a great read!

🇺🇸 Due Process Forever!

PWS

02-17-24

𝐗𝐗𝐗𝐗𝐗 “SEX & THE COURTHOUSE” 🤯 — A Tragicomic 🎭 Series Starring Judge Merrick Garland & DAG Lisa Monaco As Clueless Leaders Of A Failed Court System Where The Focus Is On Something Other Than Delivery Of Justice!

Sarah Jessica Parker
Sarah Jessica Parker will NOT be appearing in the Garland/Monaco production of “Sex And The Courthouse!”
Photo by Shawn Miller/Library of Congress. Public Domain.

Law360 (February 5, 2024, 6:23 PM EST) — The U.S. Department of Justice will pay $1.2 million to resolve a suit from a former staff assistant who said a California immigration judge routinely subjected her to explicit, lewd comments and once told her he would “make her straight” if they had sex.

By Grace Elletson

This article is “paywalled.” Those with Law360 access can get all the details.

But, the final settlement agreement is public and should give you a picture of  what’s happening inside Garland’s often-secretive and dysfunctional “courts.”

Escoto

The Plot

On January 22, 2021, two days after President Joe Biden’s inauguration, then SF Chron reporter Tal Kopan ran an extensive, well-documented expose of the widespread sexual harassment problems at EOIR, the home of the U.S. Immigration Courts at the USDOJ. The story was picked up by other publications. Also, it was highlighted in that day’s edition of “Courtside,” along with a strong suggestion for immediate action addressed to incoming AG Judge Merrick Garland and AAG Vanita Gupta (a former, now very former, “civil rights maven”), both of whom had been nominated but not yet confirmed. See  https://immigrationcourtside.com/2021/01/22/🇺🇸⚖%EF%B8%8Fnote-to-judge-garland-and-vanita-gupta-misogyny🤮-is-running-rampant-in-the-eoir-courts-soon-to-be-your/.

Tal Kopan
Tal Kopan, Deputy Washington Bureau Chief for the Boston Globe. As a reporter for the S.F. Chron in 2021, she ripped the covers off massive sexual harassment problems at EOIR.

Six months later, in apparent response to Tal’s article, Deputy AG Lisa Monaco pledged to root out sexual harassment at DOJ, formed a committee (a bureaucratic device often used for “task avoidance”), and directed it to report within six months. See https://immigrationcourtside.com/2021/07/31/⚖%EF%B8%8Ftal-sf-chron-gets-action-on-sexual-harassment-eoir-rest-of-doj-report-on-problems-in-immigration-courts-finally-spurs-positive-response-but-biden-continue/.

Lisa Monaco
Lisa Monaco, Deputy AG. In apparent response to Kopan’s expose, Monaco established a committee to look into sexual harassment at EOIR and the rest of DOJ. But, not surprisingly, the recent $1.2 million settlement with a former EOIR female staff member shows that complaints languish, resolutions are opaque, and wronged individuals have to force action by suing in Federal Court! 
Official USG Photo, Public Realm

It now appears that Monaco’s efforts at reform have been just as lackadaisical as her implementation of Biden’s Executive order on regulations improving the treatment of gender-based claims at EOIR and elsewhere in Government, and her and her boss’s disturbingly inept approach to EOIR reform generally! 

True, many of the actual incidents covered by the complaint in this case happened before Biden took office. See https://immigrationcourtside.com/2023/05/04/%F0%9F%A4%AF-former-employees-explosive-federal-court-allegations-not-everyone-in-eoir-management-focused-on-guaranteeing-fairness-due-process/. But, the plaintiff’s termination by EOIR and her filing of administrative complaints that appear to have been “brushed off” by DOJ took place in 2021 and 2022, after Garland and Monaco assumed office and well after the endemic problems with sexual harassment at EOIR were public knowledge. 

Yet, even with clear notice of the festering problems and an opportunity to address them in a way that would “change culture,” it required the institution of a Federal lawsuit by the plaintiff to obtain action and an effective remedy, almost three years after her termination.

Alfred E. Neumann
After years of overt anti-asylum bias and misogyny from Sessions and Barr, long suffering respondents, practitioners, and many EOIR employees expected a “due process/good government renaissance” under former Federal Judge and Supreme Court nominee Merrick Garland. However, despite a few improvements, Garland has “floated above” the chaos and lack of quality control that daily vex and plague those trapped in his dysfunctional, hopelessly backlogged “courts.”
PHOTO: Wikipedia Commons

It’s difficult to quantify the actual costs of EOIR mismanagement by Garland and his political lieutenants. After all, how do you put a money value on wrongful deportations, denial of constitutional rights, being subjected to substandard anti-immigrant decision making, bad precedents, “Aimless Docket Reshuffling” (“ADR”) on steroids, poorly trained judges, years stuck in limbo without the relief to which you are entitled, the effect of statistics manipulated to downplay the number of legal refugees stuck in EOIR’s hellish 3 million+ backlog, “courts” intentionally located in obscure inaccessible locations within the “New American Gulag” (“NAG”) run by DHS, and the overall “customer unfriendly” and often intentionally coercive mess to which those who practice before EOIR and those whose fate is in EOIR’s hands are subjected every working day? You can’t!

Nor is the waste of finite USG resources on chronic structural inefficiencies, boneheaded schemes to expedite dockets as “deterrents,” and ill-advised “defenses of the indefensible” in Federal Courts easy to value. But, in this case, we can quantify the cost to taxpayers of Garland’s and Monaco’s poor leadership — $1.2 million!

I wonder how many qualified accredited representatives a real problem solver and due process innovator like Professor Michele Pistone at VIISTA Villanova could train with that kind of money? 

The poor leadership of Garland on immigration matters and the lousy performance of EOIR continue to be drags on the Biden Administration and our justice system. It didn’t have to be this way!

No Longer in the Cast: Former Associate AG Vanita Gupta, who left DOJ after three years of “failing to connect the dots” among civil rights, the rule of law, and the glaring violations of human rights and due process taking place at EOIR and the rest of the immigration bureaucracy. Literally, these abuses took place right under her nose, but apparently below her radar screen!

During Gupta’s tenure, the already horrible treatment of asylum seekers and other migrants of color within EOIR and the immigration bureaucracy actually deteriorated in many ways. Gupta is a sad, yet classic, example of what routinely happens to progressives once they are invited into the “halls of power” within the Government: They get co-opted into defending the status quo and the dangerous fiction of “revolution by evolution.” See, e.g., Perry Bacon, Jr., https://www.washingtonpost.com/opinions/2024/02/06/equity-diversity-inclusion-progressivism-limits/.

Just ask neo-Nazi Stephen Miller how “revolution” really works! He spent every day of his tenure in the Trump Administration single-mindedly working to dehumanize and demonize immigrants, particularly those of color and women, and to strip them of their already overly-limited rights. He paid no attention whatsoever to criticism, naysaying, and resistance from within or without. He took every “defeat” in Federal Court as an invitation to do something even worse and more outrageous.

While Gupta, despite her lofty position and civil right creds, was unable to materially improve the situation of migrants, Miller undid decades of progress on due process, racial justice, gender justice, and good government. Much of the damage he inflicted remains imbedded in the system, at DOJ, DHS, and elsewhere, as do many of those who willingly and enthusiastically assisted him.

The contrast between Gupta’s and Miller’s accomplishments and government “legacies” is a stunning illustration of the difference between Democrats and Republicans when it comes to immigrants’ rights, human rights, and racial justice — the fundamentals of governing. Democrat “political strategists” are belatedly “wondering and wandering” what to do about an “enthusiasm gap” with their core progressive voters who put Biden and Harris in office. The answer is staring them right in the face: Results matter!

🇺🇸 Due Process Forever!

PWS

02-09-24

 

😩TIRED OF PANDERING POLITICOS BASHING HUMAN RIGHTS & DEHUMANIZING BORDER COVERAGE BY THE MEDIA? — Here’s Some Straight Talk On The Border From Migration Expert Harvard Law Professor Gerald L. Neuman! ⚖️🗽 — “There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.”🤯

Professor Gerald L. Neuman
Professor Gerald L. Neuman
J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law
Harvard Law
PHOTO: Harvard Law

https://news.harvard.edu/gazette/story/2024/02/immigration-roars-back-in-headlines-time-finally-come-for-reforms/

Liz Mineo, Staff Writer, interviews Professor Neuman in The Harvard Gazette:

. . . .

What should be done about border security, enforcement, and the immigration court backlog?

In terms of enforcement, there is no easy solution. A border fence is merely a symbol and no solution. Clearly, the adjudication system needs more resources, and adjustments to improve both efficiency and fairness. For both sides, justice delayed is justice denied, and that should be an important part of the focus.

Another priority, contrary to some claims, is to reduce reliance on detention. The U.S. is engaged in arbitrary detention of migrants who really don’t need to be detained; they could be subject to surveillance.

The country should also respect its international obligations not to send people back to countries where they will be persecuted, tortured, or killed. It cannot suspend its international obligations on that front, and it should not openly violate them, as it did under COVID.

What measures should be taken to reduce the flow of migrants into the U.S?

In terms of enforcement, the important point to stress is that this is not an issue that the U.S. can solve unilaterally. There must be a regional solution. It’s obvious to anyone who looks at the logistics of the problem that the solutions depend on cooperation with Mexico. Congress can’t just impose a solution and assume that Mexico will go along with it. More broadly, there are other countries that need to be involved in protecting refugees and in solving some of the problems that lead to migration.

Some experts say the asylum system is a parallel immigration system and that it should be revamped. What’s your take on this?

I’d like to use the term asylum broadly, not legalistically, to cover forms of protection from persecution, killing, and torture. The U.S. asylum system is too opaque and too inconsistent: Valid claims may be rejected, and claims that are made in perfectly good faith may turn out to be invalid.

On the other hand, some people seek desperately to come to the U.S. for reasons that are not covered by asylum, such as poverty, loss of livelihood, or to join family members. The system needs to winnow those claims out while remaining open to valid claims for protection. It would also benefit from greater clarity on which claims are valid, and from more consistent adjudication, but now, the system is not meeting its obligations to persecuted people.

Finally, what are your realistic hopes for changes in immigration policies?

For now, my hopes would be that any new legislation would increase funding and would help give the public the sense that the border situation is being addressed.

And meanwhile that the executive would use the authority that it already has to manage the situation better, including by negotiating with other countries. The executive should resist efforts that obstruct its compliance with its obligations.

There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.

*************************

Read the full (edited) interview at the link.

“Decrease protection” seems to be a toxic bipartisan goal of Congress and the Administration. What’s preventing it? They can’t agree on the amount of cruelty, suffering, and dehumanization to inflict on vulnerable forced migrants who overwhelmingly seek only to have the USG process their legal claims for protection in a fair and timely manner! That reality has clearly been lost in the rancid, one-sided, often secret “negotiations” in Congress; the insipid statements of the Biden Administration promising more border closures, cruel, inhuman, degrading, expensive, and wasteful detention; and treacherous “bipartisan” abrogation of well-established “life or death” legal rights to fair consideration of claims!

Professor Neuman says “this is not an issue that the U.S. can solve unilaterally.” There is general consensus among migration experts on this fundamental truth! Yet, Congress and the Administration keep pretending otherwise, with little critical, informed “pushback” from the media.

Why isn’t Kristen Welker interviewing Professor Neuman and other migration experts, rather than making “Meet the Press” a “Foxlike Forum” for those promoting White Nationalist lies about the border and national security? Welker hasn’t bothered to inform herself about the human lives and human rights involved with forced migration at the border. Therefore, her feeble attempts to stop GOP nativist politicos from rambling on with their border myths are somewhere between ineffective to pathetic, but certainly must be maddening to anyone involved with assisting the actual humans seeking protection under our dysfunctional legal system!

Remarkably, but not surprisingly, many of Professor Neuman’s points relate directly or indirectly to the failure of AG Merrick Garland (amazingly, a former Article III Circuit Judge) and his lieutenants to reform EOIR and get it working in “real time.” The ideas for fixing EOIR and the enlightened expert leadership to do it are available in the private sector. See, e.g., https://immigrationcourtside.com/2023/12/19/⚖%EF%B8%8F🤯👩🏽⚖%EF%B8%8F👨🏻⚖%EF%B8%8F-as-garlands-backlog-hits-3-million-way-past-time-to-clean/.

Garland’s inexcusable failure to fix EOIR and get it working fairly, professionally, expertly, and in real time is a drag on the Biden Administration immigration policies and an existential threat to our democracy!

Inexcusable indeed! 🤯

🇺🇸Due Process Forever!

PWS

02-08-24