What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference,  and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

 

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Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

US DISTRICT COURT SLAMS DHS FOR NOT FOLLOWING DACA REVOCATION PROCEDURES! — TORRES V. DHS

DACA-TOPRRES-SDCA

Torres v. DHS, SDCA, 09-29-17, Hon. Torres v. DHS United States District Judge

KEY QUOTE FROM JUDGE MILLER’S OPINION:

“Defendants broadly argue that the DHS possesses such broad prosecutorial discretion that they need not follow the DACA SOP in terminating the status of DAC recipients. The court categorically rejects this proposition. While Defendants are granted broad discretion to commence, adjudicate, and execute removal orders, a fundamental principle of federal law is that a federal agency must follow its own procedures. Morton v. Ruiz, 415 U.S. 199, 233-35 (1974) (“[W]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”); Nicholas v. INS, 590 F.2d 802, 809 (9th Cir.1979) (holding that INS violated its own regulation in processing a non-citizen’s request for immigration records); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself). In Accardi, 347 U.S. 260, the petitioner alleged that the Board of Immigration Appeals (“BIA”) failed to exercise its discretion in determining his application for suspension of deportation. Id. at 261. Petitioner alleged that the BIA deferred to the decision of the Attorney General and, therefore, did not exercise its own regulatory discretion in determining his application. The BIA denied petitioner’s application allegedly because petitioner’s name was on a list of immigrants the Attorney General wanted deported. The regulatory scheme required the BIA to exercise its own judgment when considering immigration appeals, and not to rely upon the Attorney General’s determinations. The Supreme Court reversed the BIA’s denial of the application and remanded for further proceedings because the BIA allegedly failed to exercise its own discretion as required by its own relevant regulations.”

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Read the complete decision at the link.

Judge Miller found that the DHS “acted arbitrarily, capriciously, and abused their discretion.” Sadly, arbitrary, capricious, and abusive actions that sow fear and uncertainty in migrant communities are at the heart of the Trump-Sessions “Gonzo Enforcement Program.” But, they don’t always manifest themselves in ways so easy to prove to an Article III Judge.

Still, there is some good language here on the limits of DH/S prosecutorial discretion.That issue is likely to be tested over and over again in the Article III Courts.

PWS

10-03-17