"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Look, M. Mitch might be slimy, devious, and intellectually dishonest. But, unlike some in his party, he’s no fool.
He’s enough of a student of history to have known that with a large majority of the popular vote and an insurmountable lead in the Electoral College, well-established within a week of the November 3 election, that Biden would be the next President.
Yet, rather than using his position and his influence to combat Trump & company’s false claims and bogus narratives of voter fraud, designed specifically to destabilize our democracy and create unrest, McConnell continued to mouth platitudes. This was even after Trump and his followers actually threatened the safety, welfare, and political futures of members of the GOP who had to guts to stand up and do their jobs.
The voters of Georgia actually have a final shot at removing Mitch’s pernicious power and getting rid of two of the worst Senators in the process. We can always hope that they come through for the rest of us and for our nation.
To use another sports analogy, we have entered the preseason of the Biden Administration. As any sports fan knows, preseason (which generally starts five or six weeks before the real season begins) is a time for dreaming. During preseason, every team is undefeated, and every fan is permitted to believe that this will finally be the year in which their suffering and loyalty are rewarded.
I’ve spoken to several law school classes this fall via Zoom. One question I’ve been asked by students (both before and after the election) is what reforms I would like to see under the Biden Administration. Although it seemed significantly more likely before November 3 that the Democrats would control both houses, I’ve stuck with the original list. This is, after all, preseason, and I’m allowed to dream.
Just to be clear, Biden will be the 13th president to serve during my lifetime, and the seventh since beginning my career in immigration law. I am well aware that most of the items on my list won’t happen; I wouldn’t be surprised if none come to pass. Maybe I’ll continue that thought in a future blog; this one is devoted to dreaming. That being said, some of the changes I hope to see are:
Safeguarding Asylum: In spite of numerous reminders from Article III courts that it is Congress, and not the Attorney General, that writes our laws, and that in enacting the 1980 Refugee Act, Congress intended to bring our asylum laws into accordance with our treaty law obligations, the Trump Administration showed shameless disregard for these facts, doing everything it could think of to upend Congressional intent by eliminating asylum eligibility to all who apply. Ideally through statute, but if not possible, then at least through regulation, safeguards must be added making it absolutely clear to future administrations that asylum is meant to be a broad and flexible relief from any type of persecution creative persecutors may conceive; that the designated grounds required for such protection are to be interpreted broadly, and that persecution may be attributed to a government providing imperfect protection to its citizens. It is important to note that none of these principles constitute changes to the law, but simply shore up or repair long-existing principles following the storm of the past four years.
An Independent Immigration Court: It is time for the Immigration Courts to be moved out of the Department of Justice, and into independent Article I status. We’ve seen over the past four years the worst-case scenario of what happens when an enforcement agency realizes that it controls the courts that exist to keep that same agency’s worst impulses in check. Article I has been strongly endorsed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many other groups, including the Round Table of Former Immigration Judges. Enacting this change is the only way the integrity and independence of the Immigration Courts can be safeguarded from future attack.
Government Appointed Counsel for Children in Removal Proceedings: This is a no-brainer. In a case before the Ninth Circuit involving this issue, J.E.F.M. v. Lynch, an amicus brief was filed by the states of Washington and California. The brief began: “In this case, the federal government argues that an indigent child charged with removability in a federal immigration proceeding does not, as a matter of due process under the federal Constitution, have the right to be represented by appointed counsel at government expense….Such a position is at odds with principles of ordered liberty and due process. It ignores the reality that indigent children are incapable of representing themselves in an adversarial immigration removal proceeding, let alone raising complex claims of due process or navigating federal administrative and appellate procedure.” The brief continued: “An adversarial immigration system, which depends on the presentation of both sides of a case in a highly specialized area of law, demands that a child, standing alone, be represented by counsel.” The brief was signed (in March 2016) by California’s then Attorney General, Kamala Harris. Hopefully Vice President Harris will work to make this right a reality.
Eliminate Chevron Deference for BIA and Attorney General Decisions: Last year, the Third Circuit, in a concurring opinion by Judge McKee in its decision in Quinteros v. Att’y Gen. (which all three judges on the panel joined), stated that “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.” The court’s observation highlights the problem with according broad deference to those who use their decision-making authority for politically motivated ends.
In a blog post earlier this year, I highlighted three recent scholarly articles questioning the continued propriety of applying Chevron’s principles to decisions of the BIA concerning asylum, or to any decisions of the Attorney General. I believe Article I status would resolve this problem, as decisions issued by an independent court outside of the executive branch would no longer constitute the interpretation of an executive branch agency covered by Chevron. In the meantime, Congress and/or the Department of Justice should consider means of exempting such decisions from Chevron deference, and thus keep both the BIA and Attorney General honest in their efforts to reach neutral and fair results.
Create a “Charming Betsy” Reg Requiring Adherence to International Law: Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible. As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance. Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Eliminate or Curtail the Attorney General’s Certification Power: Until Article I becomes a reality, Congress must pass legislation that either eliminates or at least seriously limits the Attorney General’s certification power by removing the ability to rewrite established law on a whim. At most, the Attorney General’s role should be limited to requesting the BIA to reconsider precedent in light of interceding Supreme Court or Circuit Court decisions, changes in law or regulations, or other legal developments that might materially impact the prior holding. Furthermore, any right to certify must be limited to cases before the BIA, and to actual disputes between the parties arising in the proceedings below.
Revamp Immigration Judge Training: This is more important than it might sound. Conservative commentator Nolan Rappaport has commented on the inadequacy of Immigration Judge training, particularly where many recent appointees come to the bench with no prior immigration experience. This problem predates the present administration. Under Attorneys General Holder and Lynch, the BIA in particular was extremely resistant to exposing its judges and attorneys to views not considered part of the official party line. During that period, I was amazed at how the BIA’s vice-chair (who continues to hold that position up to present) viewed respected immigration experts as the enemy, and employed a director of training and subject matter experts whose only qualification was their willingness to shield EOIR employees from outside sources. This problem has worsened over the past four years. A committee including not only those within EOIR, but also academics and members of the private bar should be formed to completely rethink the curriculum and resources available to judges and support staff.
Copyright 2020 Jeffrey S. Chase. All rights reserved. Reprinted with permission.
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Jeffrey’s point on training is particularly well-taken. This has been a festering “below the radar screen” problem at EOIR for decades.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey’s analysis supports my call for the immediate end of the “EOIR Clown Show” and the replacement of EOIR Senior “Management” and the entire BIA with expert “practical scholars” from the NDPA. Indeed, one of the most grossly “underrepresented” groups in the current Immigration Judiciary are those who gained their expertise and courtroom knowledge as clinical professors! That group includes some of the finest legal minds I have run across in nearly 50 years of government, “big law,” and academic practice.
In my experience, EOIR training ranged from the “minimally adequate,” to the sadly comical, to the overtly insulting. In the latter category were the years we had no in person training and were sent a series of “mandatory videos.” Some were inaudible; others wrong or misleading; a few were actually reprises of BIA “staff brown bag lunches.” “Amateur Night at The Bijou” to be sure!
It was not that the resources weren’t available. We had among our ranks colleagues like Judge Dana Marks, one of the “Founding Mothers” of U.S. asylum law, who successfully argued the landmark Cardoza-Fonseca (“well-founded fear”) case before the Supreme Court as a private lawyer; and Board Member/Appellate Immigration Judge Lory D. Rosenberg, to my knowledge the only EOIR judge at any level whose legal analysis was favorably cited by name by the Supreme Court in the St. Cyr case (212(c) waiver retroactivity).
Yet instead of getting insights and pointers from these and other luminaries of modern immigration and asylum law, we often were treated to government litigators telling us how to narrowly interpret asylum law or make denial decisions “easier to defend” in the Circuit Courts. One government prosecutor famously informed us that we weren’t really “judges” at all but simply “highly paid immigration inspectors working for the Attorney General.”
Others told us that as “mere DOJ attorneys” we weren’t allowed to claim status as “administrative judges” for state bar purposes, even though by law we were barred from performing non-adjudicative legal functions. This is the kind of nonsense on which some of our limited “training time” was spent. Still others told us that although Congress had granted us statutory contempt authority, the Attorney General was withholding it because we shouldn’t be allowed to hold “other government attorneys” (that is, INS/DHS prosecutors) accountable for their conduct in our “courts” (which, clearly, these bureaucrats didn’t consider “courts” at all, except, perhaps, when arguing against judicial review by the Article IIIs).
Training is important! Many of the Circuit Court reversals highlighted in “Courtside” and on Jeffrey’s blog show grossly deficient understanding and application at both the trial and appellate levels of EOIR of the fundamentals of immigration and asylum law — things like standards of proof, considering all the evidence, judging credibility, and following Circuit and sometimes even BIA precedents favorable to respondents.
This isn’t “rocket science!” They are the “x’s and o’s” of basic due process and fair immigration adjudication. Yet, all too often, EOIR “expert” tribunals (that really aren’t) come up short. Indeed very few members of today’s EOIR judiciary would be generally recognized as “experts” in the field based on their lifetime body of work. A sad, but true, commentary. But, one that can and must be changed by the Biden-Harris Administration!
The BIA should not only be reconstituted as an true “expert tribunal,” along the line of a Circuit Court of Appeals, but as a tribunal that teaches, instructs, and promotes best practices through its jurisprudence.
And, contrary to some of the restrictionist commentary that I continue to read, asylum law following Cardoza, Mogharrabi, the Refugee Act of 1980, and the U.N. Convention & Protocol from which it flows is neither intentionally narrow nor inherently restrictive. As indicated in Cardoza, it could and should properly be interpreted generously and humanely to grant life-saving protection wherever possible. The purpose of the Convention was to set forth legal minimums while inspiring greater protections along those lines.
The “spirit of Cardoza and Mogharrabi” have long been lost, and now gleefully exorcised at the “EOIR Clown Show.” It’s past time for the appointment of competent, expert EOIR judges and administrators from the NDPA. Those who are intellectual leaders with moral courage who will insist on its long overdue restoration and fulfillment of this spirit!
Even in the hot-button area of immigration, most Americans agree on the need to address the plight of so-called Dreamers, the undocumented immigrants brought to the United States as children. A Pew poll this summer showed that around three-quarters of Americans, including a majority of Republicans, favor granting them permanent legal status. If lawmakers could stop demagoguing long enough to pass a version of the Dream Act, iterations of which have been circulating for a while, the majority of Americans would be grateful.
Consider all of this a starting point — with other, even more promising avenues out there to explore. As always, the details matter. So does the degree to which lawmakers in both parties decide that it’s in their political interest to gum up the works. Mr. Biden and, perhaps more important, American voters will need to make clear their expectations for action and bring the necessary pressure to bear. There is common ground to be found in a host of policy areas. Political leaders should be pressed to cultivate it.
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Read the rest of the NYT Editorial Board’s suggestions at the link.
Sounds like a good starting point for moving forward with humanitarian actions that will benefit the common good.
In the past, the problem has been in the details of exactly what “relief” is (e.g., will it include a “path to citizenship,” and , if so, how arduous?) and who qualifies (the DACA program had a June 15, 2102 “cutoff” date, and not all of those eligible actually registered, some for fear that the information would be used to deport them). But, without Stephen Miller fouling up the works, the chances of success should be vastly improved
Let’s hope it gets done and in a fittingly generous and inclusive manner ASAP! That’s particularly true in light of the contributions that many in the DACA program have made as “essential workers” during the pandemic!
In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.
“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”
. . . .
The progressives say that Democrats must use whatever leverage they can to press their nominees.
“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”
Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.
“I see opportunity here,” Mr. Feingold said.
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Thanks Nan! Read the rest of the article at the above link!
I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary.
That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The mess at EOIR needs immediate attention and aggressive due process reforms. Thisis no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here.
Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.
Sadly, the independence, expertise, and due process performance ofEOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.
The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does!
A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”
This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon!
Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
I’m going to use a baseball analogy here (with apologies to non-fans): DJ LeMahieu finished this past season as the American League batting champion. Imagine if he were to walk in to negotiate a new contract with the New York Yankees, only to be offered the minimum permissible contract because of his disappointing performance. When a shocked LeMahieu would respond “but I hit .364 last season!,” the Yankees general manager would reply “Not even close.”
The Yankees would explain that they are no longer employing the traditional method of calculating batting average, but have come up with a “better” approach. A confused LeMahieu would note that he had 71 hits in 195 at bats. The Yankees would respond that he appeared at the plate 216 times, if one includes “other” outcomes, such as walks, hit-by-pitch, and sacrifices. LeMahieu would point out that those have not counted in calculating batting average before; the Yankees would respond “Well, now they do.” The Yankees would next point out that LeMahieu had not played in 12 of the team’s games last season, due to injury. The team therefore estimated another 48 plate appearances that the player could have had, and calculated those into his batting average as “non-hits.” Lastly, the team would note that the season was shortened by 102 games due to the pandemic, covering another 408 plate appearances. By the time they were done, the Yankees would conclude that LeMahieu had actually batted .107, certainly not Major League quality hitting.1 The Yankees would add that few if any teams would even be negotiating with a .107 hitter, much less offering them a contract.
The above purely fictitious, imaginary scenario is offered to illustrate EOIR’s very real current approach to its published asylum statistics. The Trump Administration has from day one taken the position that all asylum claims are false in order to justify its inhumane treatment of genuine refugees. However, such a claim is undermined when the Justice Department’s own judges are granting asylum in those very cases. It was therefore up to EOIR to offer the type of “alternative facts” that are a trademark of this administration.
EOIR has for many years published an annual Statistical Yearbook, which has included asylum grant rates nationally for all immigration courts. But recently, EOIR put out a chart entitled “Executive Office for Immigration Review Adjudication Statistics,” and subtitled “Asylum Decision Rates.” The top half of the chart contains a graph that is only slightly less difficult to follow than Rudy Giuliani’s latest election conspiracy theories. Below that is a chart containing asylum grant rates for the years 2008 through 2020.
Interestingly, the grant rates listed on this latest chart (using what I’ll call EOIR’s new “Larger Inclusion Asylum & Refugee Statistics,” or “LIARS” for short) are strikingly different than the numbers in the EOIR Yearbooks:
Year EOIR Statistical Yearbook LIARS Figures
2008 45% granted 23.68% granted
2009 48% 23.92%
2010 51% 25.34%
2011 52% 31.36%
2012 56% 30.55%
2013 53% 24.93%
2014 49% 22.84%
2015 48% 18.70%
2016 43% 15.80%
There is quite a difference between a grant rate of 48 percent or 18.7 percent for 2015. So how were the LIARS figures derived?
Well, in addition to asylum grants and asylum denials (i.e. the only two figures that should matter), the LIARS figures added two more categories to the equation. The first new category is “Other.” A footnote explains (if that’s the correct word) that “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.” The explanation that “other” includes “other” didn’t clear things up for me. Nevertheless, it seems that these were cases that did not involve either a grant or a denial of asylum, and thus shouldn’t be part of the calculation, much like walks, hit by pitch, and sacrifices are not considered in batting average calculations. The reason those outcomes don’t count in baseball is because they are not indicative of the batter’s ability to get a hit, since no opportunity was available. Similarly, an asylum case that did not proceed to an actual decision is not indicative of the merits of the application. For example, an asylum applicant who subsequently became eligible for a faster, easier path to legal status because they married a U.S. citizen or won the visa lottery in no way indicates that their asylum claim wasn’t meritorious.
The second new LIARS category involves cases that were administratively closed. This is the equivalent of games not played in the baseball analogy. A case administratively closed is taken off the docket and not tried; it’s a hearing not held. EOIR is now choosing to consider it as a “non-grant” in itscalculations, thus reducing the grant rate to the same degree as if the hearing was held and asylum was denied. In 2015, the two new categories that shouldn’t have been considered equaled 60.94 percent of the total cases considered by LIARS (comparable to the 102 games not played in 2020 by the Yankees, which constitutes 63 percent of a normal length season). To summarize, the real (Statistical Yearbook) grant rate of 48% in 2015 was derived based on 8,246 asylum grants out of 17,079 total asylum cases decided that year. The LIARS grant rate of 18.70considered 8,076 asylum grants (i.e. 170 less than listed in the 2015 Statistical Yearbook) out of a total of 43,189 cases consisting of grants, denials, other, and administratively closed hearings in which the asylum claim was never heard. I have no idea how LIARS reduced the number of grants in 2015 by 170 cases.
The EOIR Statistical Yearbook contains an additional chart which includes cases in which withholding of removal was granted. In 2015, fifty-five percent of asylum applicants were granted either asylum or withholding of removal. The LIARS figures make no mention of withholding of removal. If grants of that alternative relief were hidden in the “Other: other” category, they would have been counted as cases in which asylum was not granted, which would lower the grant rate in the same way as a denial.
This might all seem like mere pettiness on EOIR’s part, but the administration uses these numbers in press releases (such as its infamous “Myths vs. Facts” sheet which remains posted on EOIR’s website). It also emboldens the administration to claim it is merely “increasing efficiency” in passing new rules to quickly deny and deport asylum seekers by “efficiently” rendering all of them ineligible for relief.2 Such a statement depends on an underlying belief in the illegitimacy of the claims of those being quickly denied and deported, an illegitimacy that seeks support from the doctored numbers. Where the true numbers show a much higher rate of asylum claims granted, how could efficiency be used to justify sending actual refugees home to die?3
I wonder who came up with this new system. As I don’t know the answer, let’s call them “other.” Maybe they can spend the final weeks until January 20 devising a new chart, titled “Who should no longer be a government employee as of January 21, 2021?” To get them started, here are a few easy ones: (1) EOIR Director James McHenry: 100%. (2) Every EOIR manager who enabled him over the past four years: 100%. (3) Other: 100%.
Notes:
The infamous “Mendoza Line,” which denotes a batting average of .200, is usually considered “the offensive threshold below which a player’s presence on a Major League Baseball team cannot be justified,” according to Wikipedia.
The administration’s latest rules, scheduled to take effect on January 10, would make the manipulation of asylum grant rates unnecessary as to future claims, as virtually no one would remain eligible for such relief. One can only hope that courts will block those rules until they can be withdrawn by the Biden administration.
To be clear, no grant rate would everjustify sending even a single refugee to their death in the name of efficiency.
Copyright 2020 Jeffrey S. Chase.All rights reserved.
Reprinted with permission.
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A test of the Biden-Harris Administration’s seriousness about equal justice and restoring human dignity to immigrants will be how quickly the members of the EOIR Kakistocracy, including the BIA, are removed from their positions and replaced by real judges and judicial administrators. That is, “practical scholar-experts” with demonstrated immigration/human rights expertise, applied due process experience, and the guts and integrity to stand up for the rights of individuals who have been unfairly victimized by a vile, White Nationalist, nativist agenda!
Knightess of the Round TableHon. Jeffrey S. “Sir Jeffrey” Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
More great news from Sir Jeffrey:
Hi all: We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico. The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face. The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico. And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.
A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms. Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ (who was very much made aware of all of the amicus briefs) granted CAT relief.
The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.
It’s great that we continue to make a positive difference.
Best, Jeff
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Wow! What a great holiday present!
What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!
Then again, it was only two weeks before Election Day that four of the court’s conservatives announced their potential willingness to throw out votes on the basis of this theory of state legislative supremacy over electoral votes. It is very easy to imagine a world in which the election was a little closer, where the outcome came down to one state instead of three or four, and the court’s conservatives could use the conflict over a narrow margin to hand the president a second term.
With no evidence that Republicans have really thought about the implications of a victory in the courts, I think we can say that these briefs and lawsuits are part of a performance, where the game is not to break kayfabe (the conceit, in professional wrestling, that what is fake is real). Still, we’ve learned something from this game, in the same way we learn something about an audience when it laughs.
We have learned that the Republican Party, or much of it, has abandoned whatever commitment to electoral democracy it had to begin with. That it views defeat on its face as illegitimate, a product of fraud concocted by opponents who don’t deserve to hold power. That it is fully the party of minority rule, committed to the idea that a vote doesn’t count if it isn’t for its candidates, and that if democracy won’t serve its partisan and ideological interests, then so much for democracy.
None of this is new — there is a whole tradition of reactionary, counter-majoritarian thought in American politics to which the conservative movement is heir — but it is the first time since the 1850s that these ideas have nearly captured an entire political party. And while the future is unwritten, the events of the past month make me worry that we’re following a script the climax of which requires a disaster.
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Read Jamelle’s full op-Ed at the link.
Always interesting for those of us who grew up during the Cold War, to see how the Commie-fighting, “law and order” GOP has become a party of neo-Stalinists and nihilists!
Although the GOP right claims to shudder at the threat of ”socialism,” (most probably have little or no idea what that actually means) dangerous clowns 🤡 like Ted Cruz would have been right at home in a Leninist-Stalinist dictatorship, its cult of personality, its utter disdain for the “real will of the people” and the common good, and its brutal suppression of both truth and dissent in favor of a politically fabricated “party line.”
America needs and deserves better from its opposition party. Whether we’ll get it seems doubtful based on current performance.
Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.
In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”
Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.”
. . . .
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Read Brad’s full article at the link.
Many thanks to my“eagle eyed” friend Deb Sanders for sending this my way.
The Round Table 🛡⚔️ continues to play a positive role. Compare that with the unfailingly negative role of the current “EOIR Clown Show.”🤡🤮
In what hopefully will be a much better world after January 20, 2021, the Round Table could work with a “new EOIR,” led and staffed by real judges from the NDPA, on the practical legal and administrative reforms necessary for EOIR to become a “model court,” usingteamwork and best practices to guarantee fairness and due process for all. That’s actually what the “EOIR vision” was prior to the advent of the Bush II Administration in 2001.
That noble vision could still become a reality, but only if the Biden-Harris Administration evicts the “EOIR Clown Show” 🤡and replaces it with competent experts from the NDPA committed to due process for all. ⚖️🧑🏽⚖️🇺🇸🗽
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleRecent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
“Over 87,000 comments were filed. DOJ and DHS ignored them. This is Steven Miller’s final FU to us all,” says my friend Dan Kowalski over at Lexis Nexis Immigration Community.
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Man, the ink was barely dry on my speech last night to Houston AILA, when EOIR graphically illustrated my points about:
why the EOIR Clown Show/Kakistocracy has got to go; and
why we finally need an Attorney General with a human rights background who will act immediately to suspend these absurd and unlawful regs and remove the “perps” of this “crime against humanity” at EOIR and their accomplices.
It also illustrates why the new DHS Secretary needs to do a thorough housecleaning and reorganization of the immigration kakistocracy that has aided and abetted Miller in his neo-Nazi campaign against immigrants of color.
Also, it shows why the NDPA and the human rights advocacy community must speak out and be heard on who should be the next AG and what his or her priorities must be in immediately acting on immigration and human rights as the keys to civil rights and equal justice for all!
This issue can’t be “back burnered” as past Dem Administrations have done! An attack on justice and humanity for asylum applicants is an attack on justice for all of us. We need immediate, decisive action to restore human values and human dignity to our justice system!
That requires a real Immigration Court, with real independent judges unswervingly committed to due process, equal justice, and human rights, not the current “Star Chamber Charade.” 🏴☠️🤮 The Immigration Courts will be under the control of the Biden Administration. Fixing them must be a top priority!
As I told the Transition Team about EOIR, “Either you fix it immediately, or you own it.”
And this is not a disgraceful mess that I would want to own if I were the Biden-Harris Team. Particularly if I wanted more goodwill in the Hispanic and African American (African asylum seekers are one of the groups targeted on racial grounds by Miller and the current regime) communities in future elections!
“EOIR Clown Show Must Go” T-Shirt Custom Design ConceptMe
Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).
I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”
And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!
42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!
I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.
Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.
* * * * * * *
We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.
Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.
Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!
Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!
Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!
Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!
Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!
Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.
Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.
This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!
Let your voices be heard!
I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”
Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”
After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.
We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all!Experts in justice rather than political and bureaucratic retreads!Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.
Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.
There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!
That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!
How “low can EOIR go” before the curtain finally falls on the dangerous and deadly ☠️ Clown Show🤡? Always have to wonder what drives so-called “civil servants” who exhibit a “Milleresque” cowardly desire to pick on kids!
Hey, hey, ho ho, The EOIR Clown Show 🤡 has got to go!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including,January 1, 2020. NYC non-detained remains closed for hearings.
NYT: Up to 300,000 additional undocumented immigrants could be allowed to apply for protection from deportation under a new court ruling. President Trump had sought to cancel the program.
ImmProf: As Attorney General, Becerra has filed 100 challenges to Trump administration policies, including many immigration and immigrant-related ones such as the rescission of the Deferred Action for Childhood Arrivals, efforts to defund sanctuary cities, addition of a U.S. citizenship question to Census 2020, and more. Just last week Becerra won a challenge to President Trump’s public charge rule in the Ninth Circuit.
NYT: The “public charge” rule was supposed to ensure that green cards go only to self-sufficient immigrants, but in the pandemic, it is driving up hunger and leaving Joe Biden with a quandary.
Scientific American: Some of the most solid evidence to date shows that President Trump’s cornerstone immigration policy was built on a wholly false premise.
EOIR issued a policy memo (PM 21-06) consolidating and replacing OPPM 00-01, Asylum Request Processing, and OPPM 13-02, The Asylum Clock. The memo concerns the processing of affirmative and defensive asylum applications, the asylum and EAD clocks, docketing and scheduling, BIA appeals, and more. AILA Doc. No. 20120702
EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130
BIA ruled that counsel accepting responsibility of error does not discharge the disciplinary authority complaint obligation, and respondents seeking reopening based on ineffective counsel must show probability they would’ve prevailed otherwise. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) AILA Doc. No. 20120442
Law360: The full Fourth Circuit will revisit a lower court order blocking the Trump administration’s immigration wealth test, months after a split panel allowed the federal government to enforce the so-called public charge rule while immigrants challenge it in court.
The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708
Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20) AILA Doc. No. 20113034
Gothamist: In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.
The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20) AILA Doc. No. 20120133
The court found that the Attorney General correctly interpreted 8 CFR §§1003.10 and 1003.1(d) in Matter of Castro-Tum in holding that IJs do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (Hernandez-Serrano v. Barr, 11/24/20) AILA Doc. No. 20120134
The court dismissed in part the petitioner’s appeal of the denial of his cancellation of removal application, finding he had failed to exhaust his administrative remedies because he did not ask the BIA to address the subject of criminal violence in Mexico. (Barrados-Zarate v. Barr, 11/24/20) AILA Doc. No. 20120145
Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20) AILA Doc. No. 20120146
CA9 upheld preliminary injunctions issued against DHS’s public charge rule by district courts in California and Washington. In its order, however, the panel majority vacated the Washington court’s entry of a nationwide injunction. (City and County of San Francisco, et. al. v. USCIS 12/2/20) AILA Doc. No. 20120235
The court issued an order amending its prior opinion and denying the rehearing en banc of Vega-Anguiano v. Barr, in which the court found a reinstatement order improper where the petitioner had shown a “gross miscarriage of justice.” (Vega-Anguiano v. Barr, 11/19/19, amended 11/24/20) AILA Doc. No. 20120147
The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20) AILA Doc. No. 20113035
Granting the petition for review and remanding, the court held that the BIA erred by treating the petitioners’ failure to show prejudice caused by alleged ineffective assistance of counsel as a basis for denying their motion to reopen removal proceedings. (Sanchez Rosales v. Barr, 11/18/20) AILA Doc. No. 20113036
The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709
District court orders DHS to accept first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to 9/5/17 and that one-year deferred action and EADs must be extended to two years. (Batalla Vidal, et al., v. Wolf, et al., 12/4/20) AILA Doc. No. 20120701
Advance copy of USCIS notice that DHS is automatically extending the validity of TPS-related documentation for beneficiaries under TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 10/4/21. The notice will be published in the Federal Registeron 12/9/20. AILA Doc. No. 20120710
USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented. AILA Doc. No. 20113041
DHS issued supplemental policy guidance on MPP, including on access to information about MPP, appeals, family units, mixed-nationality family units, UACs, known physical and mental health issues, use of restraints, interagency collaboration, and ongoing changes. AILA Doc. No. 20120712
CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody have provided the information it needs to implement nationwide collection. Per CBP, the collection program will reach full operation by December 31, 2020. AILA Doc. No. 20120433
Undoubtedly, the “malicious incompetents” in the regime’s immigration kakistocracy will intentionally leave a mess behind. I also recognize that construction is more difficult than destruction.
But, I don’t subscribe to the “mission impossible” tenor of the Post article above in Elizabeth’s report. Sure, the issues related to immigration are challenging. But, if Biden puts experts from the NDPA in charge they are very solvable, in months and years, not decades!
And, even if there were an immigration “surge” on the horizon, it hardly presents the “dire threat” to America’s security and prosperity that both parties have claimed it to be in the past. The “fiction of the great surge” overwhelming our nation has driven immigration policy of both parties for far too long with disastrous consequences!
In an article I recently posted, my friend and Round Table colleague retired U.S. Immigration Judge Paul Grussendorf, who also has been an Asylum Officer and worked with the UNHCR, cogently debunks the oft repeated myth of “surge theory:”
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
Hon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
Indeed, immigration is likely to be a key part of our economic, jobs, and societal recovery. To make that happen, however, we need to end the “Amateur Night at the Bijou” approach that has been take by Administrations over the past two decades, bring in the pros and experts from the NDPA, and empower them to solve problems in conjunction with the private sector, NGOs, industry, labor, and international groups. Figuring out how to create mutually beneficial opportunities from the reality of human migration, rather than treating it as a “threat” that can be eliminated unilaterally (it isn’t, and it can’t) is the way to future success.
It’s not “rocket science.” But it will require cleaning out the immigration kakistocracy at EOIR, DOJ, DHS, DOS, and across Government and replacing it with qualified, professional, experts from the NDPA and letting them solve the problems!
Noam N. Levey, Eyan Halper, and Patrick McGreevy for the Los Angeles Times reported that President-elect Joe Biden has tapped California Attorney General Xavier Becerra to be Health and Human Services secretary, which would make him the first Latino to hold the office. According to the story, Becerra “has become one of the most important defenders of the Affordable Care Act, leading the fight to preserve the landmark law against efforts by the Trump administration and conservative states to persuade federal courts to repeal it. . . . And he has become a leading champion of reproductive health, going to court repeatedly to challenge Trump administration efforts to scale back women’s access to abortion services and contraceptive coverage.”
Becerra’s mother was born in Jalisco, Mexico and immigrated to the United States after marrying his father, who was born in Sacramento and raised in Tijuana. Becerra’s father started out picking vegetables. “He got treated like he wasn’t a citizen,” Becerra recalled in 2017. “He couldn’t walk into restaurants because the sign said ‘No dogs or Mexicans allowed.’”
Elected to the House in 1992, he rose through the ranks to become the highest-ranking Latino in Congress at the time.
I personally would have preferred Becerra as Attorney General. The totally dysfunctional and demoralized DOJ, where “Justice” has been eradicated from the mission, urgently needs a progressive Hispanic leader. Someone who fully understands the overt racism of the nativist immigration policies implemented by Sessions and Barr and how they are connected to the regime’s larger White Nationalist agenda of denying equal justice under law to all persons of color in the U.S. Someone who will make cleaning up the “EOIR Clown Show” 🤡 the top priority!
Nevertheless, there is no denying the overriding importance of public health at the present moment. And, although he isn’t a medical professional, Becerra is a good administrator who understands the intimate connection between public health failures and racism in America. It’s no accident that the African American,Latino, and lower income communities have been disproportionately harmed by the regime’s criminally incompetent and malicious response to the COVID crisis.🤮☠️⚰️
Public health is just another aspect of social justice. And, social justice has been in abject failure in the Federal System for the past four years!
Due Process Forever!
PWS
12-07-20
Historical Footnote: Ah, Dec. 7, Pearl Harbor Day,!
That reminds me of yet another “Great Moment in EOIR History,” even before the “advent of the kakistocracy.” When the Arlington Immigration Court was also assigned to the Cleveland, Ohio Televideo docket, we filled all of the then-available hearing dates on our calendars. Our request to “HQ” in Falls Church to “open” the next year for scheduling was denied, apparently on the ground that it would make the docket charts look bad by being yet another year “out.”
So, we were advised by our Court Administrator to schedule all hearings for December 7, of the last “open” year until further notice. It didn’t take long for the Ohio Bar and the Assistant Chief Counsel to recognize that on any given Master Calendar thereafter, every hearing date assigned was Dec. 7, of the same year. As I used to tell them: “Hey, I’m just an Immigration Judge. I only work here, I’m not in charge of anything.”
Of course, hundreds of cases eventually had to be rescheduled to real dates! “Aimless Docket Reshuffling” at its best!
Ironically, today’s Immigration Judges are even more feckless and powerless to manage the system than we were many years ago. Yet that didn’t stop the “GOP fraudsters” on the FLRA from illegally and dishonestly declaring them to be “management officials.” Talk about kakistocracy!
Management officials, my foot! I doubt today’s Immigration “Judges” can even schedule bathroom breaks without asking permission from the Falls Church Clown Show!🤡
The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.
The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.
The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.
EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.
Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.
The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.
Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.
The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.
For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.
Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.
Eliminating docket-management tools could worsen the backlog.
Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.
The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.
Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.
And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.
Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.
As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!
Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:
Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!
The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.
Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”
While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!
It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!
Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
I am thrilled to report that VIISTA is getting rave reviews. The inaugural class of students is really enjoying the course. They will be finishing Module 1 next week and will start Module 2 (with its focus on immigration law) in January. I am really impressed so far with their work product and the quizzes and other assessments confirm that they are learning what we want them to learn.
Students in the inaugural class come from diverse backgrounds. My current students include a Stanford college senior who aims to work as a paralegal next year, and eventually go to law school. Other students are recent college grads interested in peace and justice/law/social work who want to make an immediate impact for immigrant families. Some students are first-generation immigrants, others are children of immigrants. Some students are retirees or those seeking an encore career, like empty nesters and parents coming back into the workforce. Three PhDs also enrolled in the program. Many are volunteers with immigrant serving organizations.
I am now focused on getting the word out. Attached and linked here is a recent article from the Chronicle of Higher Education and here is a link to an article from the Columbus Dispatch. And here is a link to the website, immigrantadvocate.villanova.edu.
Please help me to spread the word about VIISTA in your networks, including among volunteers with your organizations. You can also let folks know that scholarships are available for the Spring term, which starts on Monday, January 11.
The Scholarships are offered through ADROP, Augustinian Defenders of the Rights of the Poor.
If you have any questions about the process, please feel free to reach out to Lacie Michaelson (cced here). She is the Executive Director of ADROP and took VIISTA herself as a student in the pilot.
Please note that the deadline to apply for a scholarship for Spring of 2021 semester is Monday, December 14th, 2020.
Thanks for helping me to spread the word and identify passionate advocates for immigrant justice who want to become part of the solution.
Warmly,
Michele
Michele R. Pistone
Professor of Law
Villanova University, Charles Widger School of Law
Founding Faculty Director, VIISTA: Villanova Interdisciplinary Immigration Studies Training for Advocates
Over the past four years, what passes for “management” at DOJ and EOIR has wasted millions of dollars, squandered thousands of hours of time, and kept the private bar on a treadmill with a steady stream of moronic, cruel, and inept “enforcement only” gimmicks, each seemingly stupider and more counterproductive than the last, driven by a White Nationalist nativist agenda. The result is a backlog that has exploded to astounding levels, (even with twice as many judges on the bench, many of them with questionable credentials and little if any expertise in immigration and human rights laws) and a totally dysfunctional mess that threatens to topple the entire Federal judicial system.
As those of us who understand immigration know, the key to a successful EOIR is representation! With an adequate supply of good representation, cases get sorted out at the earliest possible levels, claims are properly documented and presented, individuals show up at their hearings at remarkably high rates, and results are much more likely to be fair. Presto, “Aimless Docket Reshuffling” by EOIR shrinks, parties are encouraged to stipulate and get right to the contested issues, results at trial are more likely to be fair, appeals, petitions for review, and remands decrease, and the backlogs go down as the dockets come under control. Moreover, as the Immigration Court litigation experience improves, more practitioners get the “positive vibes” and are willing to undertake pro bono or low bono cases. Best practices developed to achieve fairness on EOIR’s high-volume docket find their way into other parts of the Federal Court system. It’s an all-around winner! Or, at least it should be!
So, any competent, rational, and knowledgeable “management group” at EOIR would make increasing representation “job # 1.” They would work cooperatively and harmoniously with bar groups, NGOs, states, and localities, to increase availability and improve quality of representation. They would eschew unnecessary detention, which inhibits representation, and insure than courts are reasonably and conveniently located in areas where private representation is abundantly available.
Of course, that’s not what the clowns at EOIR have done! Instead, they have gone out of their way to inflict misery on respondents and their representatives. Far from inspiring more folks to undertake cases, we have all seen stories of how the intentional rudeness and abuse inflicted in Immigration Court and the dysfunctional system actually demoralizes lawyers and causes them to leave the field. Their “stories of woe” are hardly encouragingfor others to donate time and effort.
Fortunately, while EOIR was busy ”kneecapping justice,” someone outside the “EOIR twilight zone” was thinking about how to solve the problem! With help from her friends, Michele designed the VIISTA program to train more non-attorney representatives to represent asylum seekers, convinced folks to fund it, recruited initial classes, and has it up and running. (By contrast, after two decades of wasted resources and incompetent meanderings, EOIR is still without a functioning e-filing system. Think that might have helped or saved some lives during the pandemic?)
And the training is not only a bargain (with scholarships available), it is beyond first class in substance and content. Essentially, it’s “what you really need to learn in law school in less than a year.” The curriculum would put to shame any training we received at EOIR, even before the current Clown Show. My Round Table colleague Judge Jeffrey Chase (a/k/a “Sir Jeffrey”) has reviewed the curriculum and agrees.
The solution is painfully obvious to anyone who takes the time to think about it. On January 21, 2021, give the hook to the Clown Show in Falls Church, and bring in the scholar/problem solvers like Michele and her NDPA colleagues to lead the due process revolution that will transform EOIR into a place where teamwork and innovation will produce the world’s best court system guaranteeing fairness and due process for all. That was once the “EOIR vision” before “serial mismanagement” transformed it into the ugly, dysfunctional Star Chamber that confronts us today.
It need not and should not be that way. But, the vision of true due process at EOIR will only be realized if the Biden Administration puts the right people — folks like Michele and others like her from the NDPA — in place immediately upon assuming power.
Let your contacts in the Biden Administration know that you have had more than enough! The EOIR Clown Show must go!
Due Process Forever!
PWS
12-05-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
