GARLAND & MAYORKAS DON’T “GET IT” — Who Makes Key Asylum Evaluations, Their Training, & Their “Group Culture” Are “Outcome Determinative” In “Life Or Death” Asylum Decisions — Failing To Recognize The Miller White Nationalist Culture @ DOJ & DHS & Not Bringing In Progressive Experts To Lead, Train, Adjudicate, & Judge Is A Killer, ☠️⚰️ Literally! — “The Biden administration now faces the Herculean task of restructuring our immigration system, not just by walking back Trump policies but also by building new ones that represent a country built on freedom, hope, and asylum. And it starts by properly and fairly listening to our asylum seekers.”

ElizabethL. Silver
Elizabeth L. Silver
American Author & Attorney
PHOTO: By David Zaugh on Elizabeth L. Silver Wevsite

https://lareviewofbooks.org/article/what-does-credible-fear-really-mean/

What Does “Credible Fear” Really Mean?

May 24, 2021   •   By Elizabeth L. Silver

A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.

I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.

Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.

During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.

I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.

The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.

. . . .

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

Sadly, and completely unnecessarily and inappropriately, there is nobody in a leadership position at DOJ right now with Elizabeth Silver’s practical insights and understanding of our broken asylum system and how it can be fixed! I’ll bet that neither Garland nor anyone on his senior staff has spent a week at Dilley or any comparable site in the “New American Gulag” trying to represent vulnerable asylum seekers in Garland’s “wholly owned star chamber courts.”

Has Garland even taken the time to observe what’s happening in Dilley, Pearsall, Texas (“home of the Big Peanut”); Jena, Louisiana; Lumpkin, Georgia (“where asylum cases go to die”), or any of the other comparable “courts” (that don’t function like “courts” at all)? Has he ever spoken to asylum applicants and their pro bono lawyers trying to negotiate his fatally flawed and intentionally “user unfriendly” system? Has he gone out and hired progressive “practical scholars” to fill in his “blind spots?”

Schmidt, Richardson, Big Peanut, Pearsall
Round Table Judges John Richardson and I have “seen the Peanut” and lived to tell about it! Pictured here in 2015 with then Pearsall JLC B. Atenis Madico.

That says loads about AG Merrick Garland — none of it good! “Ignorance,” “intransigence,” and “good enough for government work” are not acceptable approaches for the Biden Administration! Yet that’s exactly what Garland has “delivered” on immigration, human rights, racial justice, and gender equity during his first three months at “Justice.”

Of course it’s adversarial! Totally, these days! 

The White Nationalist racists in the Trump regime like Miller, “Gonzo” Sessions, “Wolfman,” “Cooch Cooch,” and “Billy the Bigot” hated asylum seekers, people of color, and women and “biased out” the system and selection processes accordingly. Heck, in clear violation of the statute, Trump even replaced USCIS Asylum Officers with totally unqualified Border Patrol Agents to insure denial of even the most compelling claims!

Sessions bogusly bellyached about too many individuals passing “credible fear.” To the contrary, this was totally appropriate, given the “super generous” standards that are supposed to be applied at the “access to the system gateway.” The real systemic problem was in the historically poor performance of the Immigration Courts on asylum grants that got immeasurably worse under Sessions and Barr. (And has remained beyond horrible under Garland’s non-existent “leadership!”)

As almost all legitimate human rights experts would confirm, the “high rejection rate” later in Immigration Court results from far, far, far too many unqualified, non-expert, improperly selected, poorly trained, Immigration “Judges” — at both the trial and appellate levels — operating in a “culture of institutionalized racism, misogyny, and default denial” rather than the generous atmosphere and culture required by the Supremes in INS v. Cardoza-Fonseca but never truly implemented at EOIR.

“Herculean” although the task might appear, there are thousands of well-qualified immigration and human rights experts, most of them in the private sector right now, who could solve this problem and establish due process, fundamental fairness, real asylum expertise, and the rule of law in short order. But, Garland and Mayorkas have failed to remove the deadwood and the Trump/Miller holdovers and have not brought in the expert problem solvers to get this currently deadly, defective, illegal, and blatantly unconstitutional system under control. Additionally, qualified, expert Immigration Judges, REAL independent, courageous Federal Judges, not “go along to get along “bureaucratic retreads,” could also train and effectively supervise the Asylum Officer Corps, rather than woodenly and often ignorantly “rubber stamping” defective denials of “credible fear.” 

Incredibly, Garland aggravated this festering problem “right off the bat” by improperly hiring 17 new, non-expert, not judicial quality Immigration Judges from flawed recruitments, skewed lists, and bogus recommendations developed by “Billy the Bigot” Barr! What an amazing lack of awareness and “open dissing” of humane progressive values and commitment to quality in Government!

Does this group represent the type of diverse, progressive candidates that President Biden would nominate for Article III Judgeships? OF COURSE NOT! Then, what possible excuse is there for “gifting” them some of the most powerful and important Federal Judgeships — those with probably more “life or death” authority and discretion over individuals than even the Supremes?  No excuse whatsoever! 

Our asylum system is totally “fixable.” Immediate improvements can be made and noticeable systemic changes could and should be in place before the end of this year! But, not the way that Garland and Mayorkas are going about it! The deadwood needs to go NOW, and be replaced with expert, progressive leadership, judges, and adjudicators!

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color! His indolent and ineffective approach to asylum decision making in Immigration Court is harming and killing vulnerable individuals and bringing our entire justice system into disrepute!

🇺🇸Due Process Forever!

 PWS

05-25-21

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Judge Merrick Garland
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?”
Official White House  Photo
Public Realm
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

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

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem: 

  • Remove the Trump/Miller holdovers @ EOIR;
  • Prune out the “go along to get along” deadwood;
  • Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
  • Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –  NOW;
  • Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day! 

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

Miller Lite
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color
Woman Tortured
Abused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons


🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

🏴‍☠️👎🏽🤮PARODY OF JUSTICE @ “JUSTICE” — EOIR’s ETHICAL WASTELAND EXPOSED BY FOIA: The Only “Surprise” Here Is Garland’s Failure To “Clean House” @ EOIR, Remove Unethical Lawyers @ DOJ, & Demand Accountability For Ethically Challenged DHS Attorneys!🦨

EYORE
“Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires! 
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Kangaroos
“Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

Hon. “Sir Jeffrey” Chase reports to the Round Table:

From: Frederick, Kent 

Sent: Friday, June 01, 2018 12:59 PM

To: Weil, Jack (EOIR)

Subject: Matter of Castro-Tum/ IJMorley

Dear Judge Weil: 

Just for reference, here is the portion of the decision that 1.1Morley violated:

Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §

1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).

Kent J. Frederick

Chief Counsel

Office of the Chief Counsel

U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107

(267) 479 —___(2_622_479-3456 (fax)

(b)(6),(b)(7XC)

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

Thanks to Judge Sue Roy for forwarding this:

[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ.  Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.

It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.

While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.

Best, Jeff

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

Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.

I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)

Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.

I’ll let the various comments I have received speak for themselves:

When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation. 

 

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

At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.

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

WOW!  This is crazy.

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

Wow!  Just WOW!  We always knew it was happening, but this is pretty blatant evidence!

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

Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.

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

Shameful, what happened to the appeal process Mr. Fredrick!

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

Is anyone really surprised?

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

Disappointed, but not surprised.

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

And has been happening ever since I started practicing in the mid-eighties.  I agree it is totally unacceptable.

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

Jack has been nothing but a profound disappointment.  I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing?  I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.

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

Completely shameful, but not surprising.  We frequently suspected this kind of thing went on.

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

The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.

BUT, HERE’S THE REAL PROBLEM:  AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!

EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.” 

Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!

Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!

Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).

Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.

How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice? 

Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships. 

Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation. 

It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.” 

But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!

Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!

Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

🇺🇸🇺🇸⚖️🗽Due Process Forever!

 

PWS

05-22-21

🏴‍☠️🤮INJUSTICE @ JUSTICE: MORE PROGRESSIVE NGOS JOIN PROTEST OF CONTINUATION OF “MILLER LITE” REGULATIONS, BAD PRECEDENTS, FAILURE TO REPLACE TRUMP HOLDOVER MANAGERS, JUDGES @ EOIR — 100 Organizations Send Letter To Garland, Monaco, Gupta Requesting Action To Repeal Outrageous, Anti-Due-Process Fee Increases — Stakeholders & Individuals Face Newly Bloated Fees 💸 For The Worst Level Of “Customer Service” 🤡 In American Justice Today!

Stephen Miller Monster
Still on “our” public payroll, still in charge of immigration and racial justice policy @ the Department of “Justice.” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Judge Merrick Garland
Attorney General, Hon. Merrick B. Garland — Exactly what does this guy and the rest of his “team” do to earn their pay over at “Justice?” Not much, from a progressive’s point of view! Can’t even seem to work up the initiative to repeal an outrageous “Stephen Miller Special” fee regulation @ EOIR! Official White House Photo
Public Realm

 

May 21, 2021

The Honorable Merrick Garland Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Vanita Gupta Associate Attorney General

United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Lisa Monaco

Deputy Attorney General of the United States United States Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

The Honorable Jean King

Acting Director

Executive Office for Immigration Review 5107 Leesburg Pike, 18th Floor

Falls Church, Virginia 22041

Re: Request to Repeal EOIR Rule Imposing Draconian Fee Increases for Critical Immigration Filings

Dear Attorney General Garland, Deputy Attorney General Monaco, Associate Attorney General Gupta, and Acting Director King:

The undersigned are refugee and immigrants’ rights advocacy organizations, legal services providers, law school professors, and providers of other services and supports for unaccompanied children, adults, and families in proceedings before the Immigration Courts or the Board of Immigration Appeals (BIA or Board).1 We write to address the EOIR Fees Rule, finalized by the Department of Justice (DOJ) and Executive Office for Immigration Review (EOIR) in the waning days of the previous administration, which adopts a harsh new fee schedule for applications, motions, and appeals in Immigration Court and BIA proceedings.2

The EOIR Fees Rule is in every way contrary to the principles of our nation’s legal system and to the Biden-Harris Administration’s commitment to improving the operation of the Immigration Courts and protecting the vulnerable individuals who appear before them.3 We understand that this Rule is among the anti-immigrant and anti-refugee rules under review pursuant to the February 2, 2021 Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.4 We urge DOJ and EOIR to take the steps necessary to repeal the EOIR Fees Rule and ensure that any further rulemaking involving fees in EOIR proceedings adheres to the principle that no person be denied due process

1 As you are aware, the Executive Office for Immigration Review, within the Department of Justice, oversees the Immigration Courts and the Board of Immigration Appeals and sets the policies governing these adjudicative bodies.

2 Department of Justice and Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 82750 (Dec. 18, 2020).

3 The White House has issued several Executive Orders and proposed legislation, the U.S. Citizenship Act of 2021, that convey the Biden Administration’s transformative vision and commitment to building a 21st century immigration system that welcomes immigrants and refugees and keeps families together. See, e.g., The White House, Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System (Jan. 20, 2021).

4 Executive Order 14012, 86 Fed. Reg. 8277, 8277-80 (Feb. 5, 2021).

May 21, 2021 Page 2

or access to asylum and other congressionally-authorized protection from deportation based on inability to pay.

Overview: The EOIR Fees Rule Creates Unacceptable Barriers to Justice

The EOIR Fees Rule imposes excessive fees on already vulnerable noncitizens—many of them unrepresented—seeking to defend their liberty, and often their lives, in proceedings before the Immigration Courts and the BIA. The new fees apply to the filing of applications, appeals, and motions that are integral to due process and to access to humanitarian protection and relief from deportation that Congress intended be available to those who are eligible. They include, for example, a nearly 9-fold increase to file an administrative appeal, which is a prerequisite to federal court review.

The new fees erect an insurmountable barrier to justice. The consequences of this impeded access are severe. Long-time immigrants face permanent exile from the country they consider home and permanent separation from loved ones, who oftentimes are U.S. citizens or lawful permanent residents. For those fleeing persecution or torture, a financial barrier to humanitarian protection can mean death. Those who will suffer a wrongful deportation as a result of the EOIR Fees Rule thus face the gravest impact, but the harm for those left behind will also be devastating.5

The gravity of the harms posed by the EOIR Fees Rule has not been felt, but that is only because a federal district court issued a nationwide preliminary injunction stopping nearly all of the new fees from taking effect.6 The threat nevertheless remains until the EOIR Fees Rule is formally vacated by the court or a new rulemaking rights the course.

A fundamental value of our nation’s system of laws is that access to justice and basic liberty not hinge on one’s wealth or lack thereof. Repeal of the EOIR Fees Rule is critical to restoring trust in the nation’s legal immigration system and ensuring that no person is deprived of a full and

5 Numerous studies have documented a range of harms flowing from deportation-forced family separations, including income, housing, and nutritional instability, trauma, and poor health and education outcomes. In view of these and other harms, the District of Columbia and the States of California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington filed an amicus curiae brief, available at https://bit.ly/3whOiEH, in support of litigation challenging the EOIR Fees Rule. As other studies have shown, these harms fall disproportionately to those who are unrepresented in their proceedings and to their families because not having counsel substantially decreases the likelihood of prevailing in removal proceedings. See, e.g., Ingrid Eagly & Steven Shafe, American Immigration Council, Access to Counsel in Immigration Court (Sept. 28, 2016), https://bit.ly/3uKOj3z. As noted here and in comments opposing the EOIR Fees Rule, the new fees will diminish access to counsel.

6 Catholic Legal Immigration Network, Inc. v. Executive Office of Immigration Review, No. 20-CV- 03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (Mehta, J.). In enjoining the new fees, the Court focused on the failure of DOJ and EOIR, under the prior administration, to consider the EOIR Fees Rule’s impact on legal services providers and the diminished access to counsel that would result for indigent adults, families, and unaccompanied children in proceedings before EOIR. See id. As discussed further below, the Rule’s promulgation violated the Administrative Procedure Act’s substantive and procedural requirements for rulemaking in a host of additional ways.

May 21, 2021 Page 3

fair day in court based on an inability to pay. Indeed, given the nature of the proceedings at issue here, the attachment of fees itself ought to be questioned in the first instance. And if fees are to be required at all, they should be returned to their previous level or lower, and be coupled with a principled, transparent fee waiver process that ensures there is access to justice, without unduly burdening legal services providers and adjudicators.

The Trump Administration’s EOIR Fees Rule: Unprecedented Increases for Appeals, Motions, Applications for Relief from Removal; a New Mandatory Asylum Application Fee; Violations of the Administrative Procedure Act; and Disregard for Access to Justice

A. The Fees Rule Imposed Radical Multi-Fold Fee Increases for Critical Filings.

The EOIR Fees Rule dramatically increased fees to file appeals, motions to reopen or reconsider, and applications for cancellation of removal or suspension of deportation. The Rule increased nearly 9-fold the fee for appealing removal orders to the BIA (from $110 to $975), raised more than 8-fold the cost of motions to the BIA to reopen or reconsider (from $110 to $895), increased fees more than 5-fold to appeal certain DHS decisions to the BIA (from $110 to $595), and more than tripled the fees to apply for cancellation of removal (from $100 to $305 for cancellation of removal for lawful permanent residents (LPRs) or suspension of deportation and from $100 to $360 for non-LPR cancellation). With the exception of the fee to file a motion to reopen or reconsider (increased over 30%) before an Immigration Judge, every increase substantially exceeded the rate of inflation for the period of time since the fees were last adjusted.7

B. The Fees Rule Added an Unprecedented, Non-Waivable, Defensive Asylum Fee.

The EOIR Fees Rule also for the first time ever imposed a fee to file an asylum application before the Immigration Court. DOJ and EOIR attributed imposition of this mandatory, non- waivable asylum application fee to the Department of Homeland Security’s adoption of such a fee for affirmative asylum applications submitted to U.S. Citizenship and Immigration Services (USCIS). But in fact it was an independent, voluntary decision on the part of DOJ and EOIR to require the fee for the very different context of defensive asylum application filings.

DOJ and EOIR adopted this fee without examining the notable differences in the circumstances of those who can apply affirmatively for asylum and those who must apply defensively in Immigration Court proceedings—including that proceedings before the Asylum Office are non-adversarial and affirmative asylum applicants may have other lawful immigration status at the time of filing whereas defensive asylum applicants frequently are detained, have often only recently arrived in the United States with just the clothes on their backs, and lack work authorization at the time of filing. DOJ and EOIR also made no assessment of the impact that a mandatory fee would be expected to have on access to asylum and related humanitarian protection.

7 See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11866, 11870 (Feb. 28, 2020).

May 21, 2021 Page 4

C. Promulgation of the EOIR Fees Rule Violated the Administrative Procedure Act.

The rulemaking that led to these fee increases violated the letter and spirit of Administrative Procedure Act by preventing meaningful notice and comment by the public. For the entire comment period, DOJ and EOIR withheld the data and much of the methodology for the study on which they based the proposed fee increases. The agency also failed to disclose the data it possessed regarding fee waivers and provided no information addressing the expected impact that fee increases would have on an already problematic fee waiver system. The inadequate record hindered public comment by depriving the public of crucial information relating to the putative basis for the EOIR Fees Rule.

Additionally, the comment period was limited to 30 days, during the onset of the COVID- 19 pandemic-driven lockdown in the United States that forced businesses, courts, government agencies, nonprofit services providers, schools, and daycare providers to close their doors and to move to a new world of remote work. The comment period was not extended despite repeated requests for more time.

The public’s ability to meaningfully comment on the impact of the proposed fee increases was also hobbled because DOJ and EOIR waited until the comment period closed before announcing a series of interrelated rulemakings that would exacerbate the impact of the fee increases.8

Finally, the agency issued the final rule without adequately addressing the concerns raised in the comments that were filed about how the proposed rules would lock low-income individuals out of court because of the inadequacy of EOIR’s fee waiver practices and deprive them of legal representation by devastating the legal services providers on whom they rely.

D. The EOIR Fees Rule Violates the Biden Administration’s Stated Values and Fundamental Principles of Fairness, Access, and Due Process.

The most serious flaws of the EOIR Fees Rule include the following.

1. Requiring noncitizens to bear nearly the full cost of adjudications in adversarial proceedings reverses decades of agency policy and defies legal norms.

EOIR is an appropriated agency, not one that is fee-based. Nonetheless, in a sharp departure from decades-long policy, the EOIR Fees Rule employed an “activity-based” or “cost recovery” model that assigned to respondents in removal proceedings the dollar value of nearly all of the staff time involved in processing, adjudicating, and transmitting Immigration Judge and BIA

8 See, e.g., Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (June 15, 2020); Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020); Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 59,692 (Sept. 23, 2020); see also Centro Legal de la Raza v. EOIR, No. 21-CV-00463-SI, 2021 WL 916804, at *26 (N.D. Cal. Mar. 10, 2021) (noting serious concerns with staggered, piecemeal rulemaking by EOIR, including the EOIR Fees Rule).

May 21, 2021 Page 5

decisions on motions, appeals, and applications for cancellation of removal or suspension of deportation.9

EOIR is an adjudicative body. Nearly all the proceedings before it are adversarial and initiated and prosecuted by the Government. We are aware of no judicial or quasi-judicial adversarial proceedings in which any party—let alone the one whose liberty is at stake—bears nearly the entire cost of the court staff time involved in adjudicating a motion, an appeal, or an application of the type that is presented in immigration court as a defense to removal.10 The decision to employ a cost recovery model and impose such radical fee increases was a marked and unjustified departure from decades of agency commitment to keeping costs “at less than full recovery recognizing longstanding public policy and the interest served by these processes.”11

2. A new mandatory asylum fee defies the Biden Administration’s commitment to undoing the prior administration’s evisceration of U.S. asylum law and policy.

The decision to adopt an asylum application fee, let alone one that would be mandatory and not waivable, was also an historic and unjustifiable departure from decades-long policy and the practice of nearly every other party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. A host of concerns were raised when this fee was proposed for affirmative asylum applications.12 As explained above, those concerns apply with even greater force to any fee required for defensive asylum applications, let alone one that is mandatory.

9 The only costs not assigned to respondents under the rule were office overhead, fringe benefits, and certain other costs such as interpreters. The Notice of Proposed Rulemaking noted that such costs could not be included because, for example, they would be incurred in any event for other agency work, do not arise in all cases, and/or are infeasible to calculate because they hinge on decisions such as individual employee benefits selections. See 85 Fed. Reg. at 11870, 11872.

10 Contrasting examples are abundantly available. To name just a few, unlike the heavy fees here, the fee to file a petition for writ of habeas corpus in federal court is only $5, and there is no cost for any level of administrative review of the denial of Social Security benefits. See 28 U.S.C. § 1914(a) (establishing $5 filing fee for writ of habeas corpus); Social Security Administration, The Appeals Process, Publication No. 05-10041 (Jan. 2018), https://www.ssa.gov/pubs/EN-05-10041.pdf (describing the various levels of administrative review and listing no cost for review). There also is no fee to file a motion for reconsideration in federal district court. Under the EOIR Fees Rule, the fee for an appeal to the BIA is nearly double the cost of docketing an appeal before a federal circuit court and more than twice as high as the fees for filing a complaint in federal court. See U.S. Courts, Court of Appeals Miscellaneous Fee Schedule (Oct. 1, 2019), https://bit.ly/3fke1oO ($500 docketing fee for appeals before the federal courts of appeal); U.S. District Court for the District of Columbia, Fee Schedule, https://www.dcd.uscourts.gov/fee-schedule (last visited Mar. 24, 2020) ($400 docketing fee for complaint before the federal district court). None of these tribunals seeks to recover anything approximating the full cost of the staff time needed for their adjudications. That is simply not how the justice system works in this country.

11 Powers and Duties of Service Officers; Availability of Service Records, 51 Fed. Reg. 39993, 39993 (Nov. 4, 1986) (Final Rule amending fee schedule of the former INS and EOIR).

12 See, e.g., 85 Fed. Reg. at 46844 (summarizing commenters’ concerns with an affirmative asylum application fee).

May 21, 2021 Page 6

3. The EOIR Fees Rule placed undue reliance on EOIR’s inadequate fee waiver process.

In response to the obvious concerns about the unaffordability of multi-fold increases in fees that many respondents could not afford even at their previous level, DOJ and EOIR pointed to the “possibility” of a fee waiver as protection for indigent respondents.13 The wholesale reliance on this “possibility” was another fundamental flaw of the rulemaking. As evidence in the record made clear, fee waivers were an inadequate safety valve even before promulgation of markedly higher fees.14 Of particular note, there are no clear standards for fee waiver eligibility, and the decision to grant or deny a fee waiver request is entirely discretionary.15 Not surprisingly, fee waiver requests are inconsistently adjudicated, as DOJ and EOIR have themselves admitted.16

4. Fee increases and the increased need for fee waivers harm legal services providers and undermine access to counsel.

Immigration court respondents who have legal representation are substantially more likely to succeed at every stage of their proceedings. But many cannot afford counsel. As comments opposing the EOIR Fees Rule explained, the prior administration’s fee increases ensure that even greater numbers will be forced to go without representation.

In promulgating the Fees Rule, DOJ and EOIR failed to consider the harmful impact of fee increases and a new asylum fee on nonprofit legal services providers and the new fees’ adverse impact on low-income respondents’ access to counsel. Among the expected impacts of the Final Rule was an explosion in the need for fee waivers and the corresponding need for fee waiver requests, adding to the time required for each individual case and diminishing the capacity of legal services providers to provide free or low-cost legal representation to those unable to afford counsel. DOJ and EOIR dismissed these concerns, but as the federal district court that enjoined the bulk of EOIR’s new fees found, “the APA required EOIR to acknowledge those concerns and respond to them in a meaningful way, not blithely dismiss them as ‘outside the limited scope of this rulemaking.’”17

13 See, e.g., 85 Fed. Reg. at 11874.

14 See, e.g., 85 Fed. Reg. at 82758.

15 See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d); see also DOJ, EOIR POLICY MANUAL pt. II, ch. 3, § 3.4(d)

(“When a fee to file an application or motion is required, the Immigration Judge has the discretion to waive the fee upon a showing that the filing party is unable to pay the fee.”) (Jan. 28, 2020), https://www.justice.gov/eoir/eoir-policy-manual/3/4; id. pt. III, ch. 3, § 3.4(c) (“When an appeal or motion normally requires a filing fee, the Board has the discretion to waive that fee upon a showing of economic hardship or incapacity.”) (last updated Dec. 22, 2020), https://www.justice.gov/eoir/eoir-policy-manual/iii/3/4; 85 Fed. Reg. at 82759 (“fee waivers are discretionary by nature”).

16 See, e.g., 85 Fed. Reg. at 82759 (“differences in adjudicatory outcomes are inherent in any system rooted in adjudicator discretion”); see also id. (“Any calculations attempted by the Department to ‘account for’ the effects of fee waiver adjudications in light of the updated fees would be unreliable because fee waivers are discretionary by nature.”).

17 Catholic Legal Immigration Network, Inc. v. EOIR, No. 20-CV-03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (quoting 85 Fed. Reg. at 82775).

May 21, 2021 Page 7

5. The EOIR Fees Rule disregards noncitizens’ inability to pay exorbitant fees and the attendant impact on access.

DOJ and EOIR did not undertake their own examination of the impact that fee increases would have on access to due process and justice before the Immigration Courts and the BIA. The Final Rule then failed to heed the substantial concerns that commenters raised in this regard. Indeed, in the Final Rule’s publication, DOJ and EOIR stated that the agency’s authority to set fees was “not restricted by . . . principles of ‘affordability’ or ‘accessibility.’”18

The Final Rule, embodying this lack of regard for affordability and access, has no place in a system of justice.

Recommendations

The prior administration undermined the strength and integrity of the Immigration Court system in myriad ways. There is much work to be done to ensure that noncitizens in removal proceedings have fair access to justice and the families of those noncitizens and the entire public see the system has integrity. Repealing the EOIR Fees Rule is not sufficient to achieve this end, but it is a necessary step. Toward this end, we make the following recommendations:

1. The EOIR Fees Rule must be repealed. As outlined above, there is reason to question the imposition of fees on Immigration Court respondents at all given the nature of the proceedings and the liberty interests at stake. At a minimum, fees should be restored to their prior level or be lowered.

2. Such repeal should make explicit the principle—long understood until its upending by the EOIR Fees Rule—that no person should be denied access to the appeals, motions, humanitarian protection or other congressionally-authorized protection or relief from removal, based on an inability to pay.

3. The prior administration’s rulemaking exposed deficiencies in EOIR’s approach to fee waivers that should be rectified. Standards should be clear, adjudications should be consistent, and safeguards should be adopted to account for special circumstances to ensure that no person is prevented from filing necessary applications, motions, or appeals because of cost.

4. Exemptions from any required fees should be codified for particularly vulnerable populations, including asylum applicants, children, those who are detained, those lacking representation, and those who are incompetent or otherwise have disabilities that interfere with their ability to access justice.

18 85 Fed. Reg. at 82754.

May 21, 2021 Page 8

5. EOIR must improve its data collection and analysis, ensure transparency, and provide a clear channel for low-income noncitizens to seek a remedy where denial of a fee waiver precludes the filing of any application, motion, or appeal.

In closing, we thank you for the careful review that is underway and your consideration of the foregoing. We look forward to working with the Biden Administration to bring about a more just approach. For further discussion of the EOIR Fees Rule, please contact Avideh Moussavian at moussavian@nilc.org or Jorge Loweree at jloweree@immcouncil.org.

Respectfully submitted,

African Public Affairs Committee

Ahri Center

Alein Haro, University of California, Berkeley*

American Friends Service Committee

American Gateways

American Immigration Council**

American Immigration Lawyers Association

Americans for Immigrant Justice

America’s Voice

Anita Sinha, American University, Washington College of Law*

Anne Schaufele, International Human Rights Law Clinic, American University Washington

College of Law*

Anti-Defamation League (ADL)

Asian Americans Advancing Justice – Atlanta Asian Americans Advancing Justice – Los Angeles Asian Counseling and Referral Service (ACRS) Asian Law Alliance

Asian Pacific Institute on Gender-Based Violence Asian Resources, Inc

ASISTA

Asylum Seeker Advocacy Project (ASAP) AsylumWorks

Bellevue Program for Survivors of Torture

Black and Brown United in Action

BPSOS Center for Community Advancement Bridges Faith Initiative

Campesinos Sin Fronteras

Capital Area Immigrants’ Rights Coalition

CARE Fund

Carol Bohmer, Dartmouth College*

CASA

May 21, 2021 Page 9

Catholic Charities Dallas

Catholic Charities NY, Immigrant and Refugee Services

Catholic Legal Immigration Network, Inc.***

Causa Oregon

Center for Gender & Refugee Studies

Center for Immigrant Advancement (CIMA)

Center for Victims of Torture

Chaldean Community Foundation

Chicanos Por La Causa, Inc.

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)***

Coalition on Human Needs

Colorado Asylum Center

Community Legal Services in East Palo Alto***

Connecticut Shoreline Indivisible

David B Thronson, Michigan State University College of Law*

Democratic Socialists of America – Coachella Valley

Denise Gilman, University of Texas School of Law*

Desert Support for Asylum Seekers

Education and Leadership Foundation

Elissa Steglich, University of Texas School of Law*

Ellen Forman, LICSW, Massachusetts General Hospital, Social Service Department* Employee Rights Center (ERC)

Esperanza Immigrant Rights Project

Evangelical Lutheran Church in America

First Friends of New Jersey and New York

Florence Immigrant and Refugee Rights Project

Free Migration Project

Freedom Network USA

Geoffrey Heeren, University of Idaho College of Law*

Geoffrey Hoffman, University of Houston Law Center*

Greater Portland Family Promise

Haitian Bridge Alliance

HIAS

¡HICA! Hispanic Interest Coalition of Alabama

Human Rights First

Human Rights Initiative of North Texas

Immigrant Action Alliance

Immigrant Defenders Law Center

Immigrant Legal Advocacy Project

Immigrant Legal Defense

Immigrant Legal Resource Center (ILRC) Immigrant Welcome Center

Immigration Advocates Network Immigration Equality

Immigration Hub

Innovation Law Lab

Interfaith Community for Detained Immigrants

International Refugee Assistance Project (IRAP)

International Rescue Committee

Jaya Ramji-Nogales, Temple University*

Jewish Activists for Immigration Justice of Western MA

Jon Bauer, Asylum and Human Rights Clinic at the University of Connecticut School of Law* Jonathan Weinberg, Wayne State University Law School*

Kate Evans, Duke Immigrant Rights Clinic*

Katie Herbert Meyer, Washington University Immigration Law Clinic*

Kids in Need of Defense (KIND)***

Korean Community Center of the East Bay

La Resistencia

Las Américas Immigrant Advocacy Center

Legal Aid Justice Center

Lincoln United Methodist Church

Louisiana Advocates for Immigrants in Detention

Lutheran Social Services of New York

Lynn Marcus, University of Arizona James E. Rogers College of Law*

M Isabel Medina, Loyola University New Orleans College of Law*

Make the Road Nevada

Make the Road New York

Memphis United Methodist Immigrant Relief

Mexican American Opportunity Foundation (MAOF)

Mi Familia Vota Nevada

Michael Kagan, University of Nevada, Las Vegas, Immigration Clinic*

Michigan Immigrant Rights Center

Migrant Center for Human Rights

Minkwon Center

Mississippi Center for Justice

Mixteco/Indígena Community Organizing Project

National Center for Lesbian Rights

National Health Law Program

National Immigrant Justice Center

National Immigration Forum

National Immigration Law Center**

National Immigration Litigation Alliance

May 21, 2021 Page 10

National Immigration Project (NIP-NLG)

National Network for Immigrant & Refugee Rights

NETWORK Lobby for Catholic Social Justice

New Mexico Immigrant Law Center

New Sanctuary Coalition

New York Immigration Coalition

New York Legal Assistance Group (NYLAG)

North Carolina Asian Americans Together

Northern Illinois Justice for Our Neighbors

Northern Manhattan Improvement Corporation

Northwest Immigrant Rights Project

Oasis Legal Services

OCA-Greater Houston

OneAmerica

PARS Equality Center

PG ChangeMakers Coalition

Philip G. Schrag, Georgetown University*

President and CEO, Self-Help for the Elderly

Prisoners’ Legal Services of New York

Project Blueprint

Project Lifeline

Public Counsel

Public Law Center

Pueblo Sin Fronteras/Familia Latina Unida

Puentes de Cristo, Inc.

Quixote Center

RAICES

Rainbow Beginnings

Refugee Action Network of Illinois

RefugeeOne

Rocky Mountain Immigrant Advocacy Network

SAAVI Michigan

Sanctuary DMV

Sarah H. Paoletti, University of Pennsylvania Carey Law School* Sarah R Sherman Stokes, Boston University School of Law* Saratoga Immigration Coalition

Tahirih Justice Center

Takoma Park Mobilization, Equal Justice Committee

Tania Valdez, University of Denver Sturm College of Law*

The Asylum Program of Arizona

The International Institute of Metropolitan Detroit

The Young Center for Immigrant Children’s Rights

May 21, 2021 Page 11

UndocuBlack Network

Unidos Bridging Community

Unitarian Universalist Service Committee

UNITED SIKHS

UnLocal

UpValley Family Centers

Valeria Gomez, University of Connecticut School of Law* VECINA

Volunteers of Legal Service

W.M. Jewish Activists for Immigration Justice Washington Defender Association

Witness at the Border

* The institutional affiliation listed for identification purposes only.

** The National Immigration Law Center and the American Immigration Council are counsel in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV-03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

*** Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights (CHIRLA), Community Legal Services in East Palo Alto, and Kids in Need of Defense (KIND) are plaintiffs in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV- 03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

cc: Susan Rice, Assistant to the President for Domestic Policy

Esther Olavarria, Deputy Director of the Domestic Policy Council for Immigration

Tyler Moran, Special Assistant to the President for Immigration, Domestic Policy Council Margy O’Herron, Senior Counsel, Office of the Deputy Attorney General, Department of Justice

May 21, 2021 Page 12

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

Thanks to my good friend and NDPA Superstar Laura Lynch over at NILC for reporting and forwarding this!

Laura Lynch
Laura Lynch
Senior Immigration Policy Counsel
National Immigration Law Center

How many “Team Garland” officials at DOJ does it take to change a light bulb? 

A: About the same number as the total of EOIR “managers” over the past two decades who have failed to provide any semblance of an operational, nationwide e-filing system (perhaps this would have been useful during COVID?) for the past 20 years and then had the “chutzpah” to astronomically raise filing fees for the public to cover up and divert attention from DOJ/EOIR’s gross incompetence and contempt for “good government.” 

Yeah, these problems were there when Garland arrived. But, his failure for going on three months to take the elementary steps necessary to repeal Trump-era travesties makes him complicit! Rescinding a totally unjustified regulation, panned by progressive groups across the board, would be about a four-hour job for an expert who knew what they were doing. Too bad the basic progressive changes necessary to restore sanity @ EOIR appear to be “above the pay grade” of Team Garland. 

Pity us poor American taxpayers! We are still footing the bill for Stephen Miller to continue his work for former President Trump (outrageous🤮). https://www.salon.com/2021/05/18/stephen-miller-and-more-than-15-other-trump-aides-still-getting-paid-by-taxpayers-report_partner/

We also are paying “top dollar (for USG) for Garland, Monaco, and Gupta NOT to undo any of the racist, misogynist White Nationalist policies Miller and his cronies instituted at Justice, NOT to remove all of the unqualified Sessions/Barr/Miller “plants” at EOIR, and, get this, to mindlessly CONTINUE TO HIRE less qualified, non-progressive, non-expert, non-diverse Immigration “Judges” under a totally discredited, biased, anti-diversity process developed under Miller, Sessions, and Barr FOR THE SPECIFIC PURPOSE OF PRODUCING A XENOPHOBIC, ANTI-DUE-PROCESS, ANTI-ASYLUM “JUDICIARY @ EOIR” (doubly outrageous 🤮🤮)!

Let’s be clear about this: Every day that Garland & co. continue to dwaddle over long overdue progressive reforms @ EOIR means innocent lives and futures — futures that will be essential to our national success —  are flushed down the toilet by EOIR. 🚽 This human damage is both irresponsible and irreparable! Garland’s inaction and lack of expertise and concern about immigration, human rights, and due process is also a DIRECT INSULT to legions of advocates — all members of the NDPA — who have put their professional lives, as well as in many cases their health and safety, “on the line” to save vulnerable lives and preserve American democracy against the Trump/Miller onslaught! And, this is the “thanks” they get from Garland and others who spent the last few years in the “ivory tower” of the Article III appellate judiciary or otherwise above the fray and out of the line of fire! Simply unacceptable!

Not what we expected nor what we deserved from the Biden Administration and “Team Garland” @ (continuing parody of) “Justice!”

“TEAM GARLAND” TO ASYLUM SEEKERS & THEIR LAWYERS:  “OF COURSE, YOU SHOULD PAY MORE, MUCH MUCH MORE, FOR THESE TYPES OF “CUSTOMER SERVICES” FROM EOIR! WHERE ELSE IN THE AMERICAN JUSTICE SYSTEM COULD YOU GET THIS LEVEL OF “RED CAPRET” TREATMENT (CUSTOM DESIGNED BY STEPHEN MILLER HIMSELF):

Star Chamber Justice
“Justice”
Star Chamber
Style
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

PWS

05-22-21

REBEKAH WOLF @ AMERICAN IMMIGRATION COUNCIL ECHOES MY CRITICISM OF GARLAND’S INEXCUSABLE FAILURE TO PROMOTE DIVERSITY, SELECT PROGRESSIVE EXPERTS IN INITIAL IJ PICKS — A Wasted Opportunity That Neither Progressives Nor The Biden Administration Can Afford!

Rebekah Wolf
Rebekah Wolf
Senior Attorney,
Immigration Justice Campaign
American Immigration Council
PHOTO: Linkedin

https://immigrationimpact.com/2021/05/13/immigration-judges-under-biden/

First Round of Biden Immigration Judges Fails to Increase Diversity

Posted by Rebekah Wolf | May 13, 2021 | Due Process & the Courts, Immigration Courts

The Biden administration announced its first round of immigration judge appointments on May 6. Unfortunately, the immigration court appointments do not show the commitment to diversity that President Biden has demonstrated in his federal court appointments.

All of the new judges had received conditional offers from the Trump administration. The current administration was under no obligation to continue with the appointments, however. Advocates expressed disappointment in the hires and lack of balanced perspectives and backgrounds. Most of the 17 new immigration judges have experience as prosecutors and/or working for U.S. Immigration and Customs Enforcement (ICE)—and no experience defending immigrants.

Of the 17 new immigration judges, seven have worked for ICE and five have worked as prosecutors. Only two have worked as immigration defense attorneys, both of whom have also worked for ICE. The perceived bias of having worked for years on one side is concerning enough. But many of the appointees also do not have the substantive knowledge some believe is necessary for the position.

Former Immigration Judge Paul Schmidt commented on the appointments, saying:

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring.”

The appointments include one Assistant Chief Immigration Judge (ACIJ) and six supervisory Unit Chief Immigration Judges (UCIJs), a newly invented position. The UCIJs, only one of whom has a background in immigration law, will be working from a new Immigration Adjudication Center (IAC) in Richmond, Virginia. Like at the two existing IACs, these new immigration judges will hear cases by video-teleconference in office buildings that are closed to the public. Litigation is pending over the government’s failure to provide public information on IACs.

Immigration judge appointments strongly affect immigration court decisions. The Trump administration appointed approximately two-thirds of the 520 current immigration judges. With these new judges and along with significant court policy changes, the asylum denial rate increased from 54.6% in fiscal year 2016 to 71.6% in fiscal year 2020.

The number of immigration judges Biden appoints will also affect the immigration court backlog, currently at 1.3 million cases. Biden’s proposed budget calls for hiring 100 new immigration judges, which many experts say is insufficient. Still, the need for expediency in hiring additional judges cannot outweigh the need for a balance of experience on the bench.

Over a million people are involved in an immigration court system that is inconsistent and unfair. The Biden administration should apply its commitment to judicial diversity to immigration judge appointments, especially a diversity in perspectives and experience.

Ultimately, immigration courts will not be free of the bias inherent to being part of the same branch responsible for prosecution. As advocates have longed called for, Congress must establish Article I immigration courts for immigration proceedings to be truly fair and independent.

FILED UNDER: immigration judges

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

To date, Garland’s lousy performance @ DOJ gets an “F.” Simply not acceptable with lives on the line!

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color, Women, & Asylum Seekers.”

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-18-21

DEADLY ☠️ EOIR CLOWN SHOW 🤡 PLAYS ON UNDER BIDEN — ACIJ’S “Exit Interview” By SF Chron’s Tal Kopan Reveals Total Dysfunction, Systemic Abuse Of Human Rights, Waste Of Taxpayer Funds By Stunningly Incompetent DOJ — Other Than A Few Cosmetic Changes, Garland Enables Trump’s Abuses & Uses Barr’s Discredited, Politically & Racially Suspect “Judicial” Hiring Practices, Fails To Establish Due Process, Best Practices, Professionalism, Expertise, Respect For Human Dignity As Overriding Values! — Garland Presides Over “A ‘soul-crushing bureaucracy’ . . . shockingly unlike the regular American legal system.”🤮 Why Is He Ignoring Pressing Need For Progressive Reforms, Due Process Dedicated Judges?

EYORE
“Eyore In Distress” — “Help, help, help, help! I’ve fallen, and I can’t get up!”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

From Tal:

Exclusive: Outgoing SF immigration judge blasts courts as ‘soul-crushing,’ too close to ICE

By Tal Kopan

When William Hanrahan decided to take a job managing the San Francisco immigration court last year, he hoped he could “do some good” by bringing his expertise to resolving the legal morass many U.S. migrants must navigate to stay in the country.

He knew the justice system well. He had spent 20 years as a prosecutor and more than a decade as a state judge, including two years as a chief judge, and taught law on the side for 13 of those years. He’d worked in both criminal and civil law.

But Hanrahan said he encountered a “soul-crushing bureaucracy” that he found shockingly unlike the regular American legal system. After little more than a year in the job, he called it quits this month, frustrated, he said, with a system run by the U.S. Department of Justice and subject to its political whims, a top-down management style that throttled innovation and slow-walked modernizing reforms, and a disconcerting proximity to the Immigration and Customs Enforcement attorneys who act as the court’s prosecutors.

“There needs to be a wholesale reform,” Hanrahan said. “On a daily basis I really felt I was being forced to rearrange the deck chairs on a ship that was going down.”

Hanrahan’s last day as Assistant Chief Immigration Judge was May 7, capping a 14-month tenure as the top manager overseeing the 25 immigration judges and dozens of staff at the San Francisco court. Before that, he was a county assistant district attorney, state assistant attorney general, state circuit court judge and chief circuit court judge during a 30-year career in Wisconsin. He also taught law as an adjunct professor at three Wisconsin colleges and universities.

He spoke with The Chronicle in an exclusive interview about what he said were perplexing management decisions and failures of court administration, exacerbated by seemingly daily “absurdities.” Sitting immigration judges are prohibited by the Justice Department from talking to the press, so Hanrahan’s insights provide a rare account from inside the courts into dysfunction that has long been described by the immigrant advocacy community.

 

More: https://www.sfchronicle.com/politics/article/Exclusive-Outgoing-SF-immigration-judge-blasts-16183235.php

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

Thanks, Tal! Those with SF Chron access should read the full article at the link!

Shocking as this is, it’s no surprise to those of us who have been following the unseemly demise of EOIR and its daily perversions of the basics of due process, human decency, and competent government!

The problems are well documented; the solutions well developed and widely distributed; the experts to fix the system available, mostly from the private sector! There is no need for more “study” and dawdling from Garland!

What is stunning and infuriating is Garland’s abject failure to stand up for human rights, human decency, the rule of law, and to bring in the progressive experts who will shake up this national disgrace from top to bottom, get rid of the deadwood, can the bad rules, vile precedents, and bloated unnecessary bureaucracy, and put some humanity, scholarship, fairness, and professionalism back in this ungodly, deadly, and completely unnecessary mess! 

Not rocket science!🚀 So, why hasn’t Garland gotten the job done?

🗽⚖️🇺🇸Due Process Forever!

PWS

05-17-21

🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Stephen Legomsky
Professor Stephen H. Legomsky
Emeritus Professor of Law & Former USG Senior Executive
Washington U. Law
PHOTO: Washington U. Law website

 

https://thehill.com/opinion/immigration/552539-one-quick-asylum-fix-how-garland-can-help-domestic-violence-survivors

Karen & Steve write in The Hill:

With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.

On the campaign trail Joe Biden pledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.

But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.

How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.

The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.

. . . .

One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.

Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.

Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.

. . . .

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

Woman Tortured
Tortured & abused refugee women’s lives continue to hang in the balance while Judge Garland diddles and runs “Miller Lite Judicial Selection Happy Hour” at failing DOJ!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read the complete op-ed at the link.

If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.

I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B- would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!

Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!

Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.” 

If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17  “Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!

The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed. 

Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start. 

Star Chamber Justice
“It’s a long way to Richmond,” as country singer Travis Tritt would say!

“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.

Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!

Miller Lite
“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-09-21

🇺🇸⚖️🗽GARCIA HERNANDEZ, MOSKOWITZ, CHEN, & I RIP GARLAND’S CONTINUATION OF BARR’S HORRIBLE IMMIGRATION JUDGE HIRING PRACTICES  🤮👎🏻 — DOJ’s Lame, Disingenuous Defense Of Garland’s Anti-Diversity, Anti-Immigrant, Anti-Due Process, Expertise-Denying Bogus Judicial Hiring Practices @ EOIR Enrages Progressives, Scholars, Experts, Betrays Biden’s Promises, Threatens To Shatter Dem Coalition! — Report By Rebecca Beitsch @ The Hill!

Rebecca Beitsch
Rebecca Beitsch
Staff Writer
The Hill
PHOTO: pewtrust.org

https://thehill.com/policy/national-security/552373-biden-fills-immigration-court-with-trump-hires

From Rebecca’s article:

. . . .

The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience.

Almost none have made their career representing migrants in court.

The Thursday announcement from the Department of Justice (DOJ) initially perplexed immigration attorneys, advocates and even some former immigration judges who wondered why the group so closely mirrored the jurists favored by the Trump administration.

. . . .

It’s also a surprising move for a president that has otherwise sought to quickly reverse a number of Trump immigration policies while calling for a more humane response to migration.

“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.

. . . .

DOJ pushed back against criticism that the new judges would contribute to a pattern of rulings that favor government attorneys over immigrants, saying it “takes seriously any claims of unjustified and significant anomalies in adjudicator decision-making and takes steps to evaluate disparities.”

“Note also that the Executive Office for Immigration Review (EOIR) continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously and that its immigration judges uniformly interpret and administer U.S. immigration laws,” the spokesperson said.

But Schmidt said diversifying the attorneys on the bench is what will be needed to have a greater impact.

“You need to get some progressive immigration experts into the system who recognize what good asylum claims are who can establish precedent for granting cases and then move those cases through the system,” he said.

“I haven’t seen much evidence to back up their initial claim they want to be fair and just to asylum seekers. It’s just Stephen Miller Lite.”

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

The DOJ’s response is preposterous, further evidence Garland is the wrong person to bring “justice” back to “Justice!” No, and I mean NO, progressive immigration expert in America would call the DOJ’s judicial hiring practices under the Trump Administration fair and merit-based! These lists and the selection process were tainted by the Trump kakistocracy at DOJ. What kind of Attorney General perpetuates this utter nonsense!

Numerous detailed reports have criticized the Trump hiring plan that Garland mindlessly and insultingly furthered! Garland has access to all of these criticisms, most of which were delivered to the Biden Transition Team in one form or another. No excuses for Garland’s atrocious handling of EOIR to date!

The claim that EOIR takes claims of glaring discrepancies “seriously” is equally ridiculous and intellectually dishonest! Current TRAC Immigration data shows asylum grant rates for currently sitting Immigration Judges varying from more than 90% to 1% with a number of Immigration Judges, including several “rewarded” with appointments to the BIA under Barr, denying 98% or 99% of claims. Duh, you don’t need to be a statistician or have an Ivy League law degree to know that there is a skunk 🦨 in these woods!

These are major, unacceptable discrepancies first highlighted by my colleagues Professor Andy Schoenholtz, Professor Phil Schrag, and Professor and now Associate Dean (Temple Law) Jaya Ramji Nogales in their seminal work “Refugee Roulette” written more than a decade ago at Georgetown Law. The system is actually immeasurably worse now than it was then, as Sessions and Barr filled the Immigration Bench and packed the BIA with unqualified judges notorious for their lack of knowledge of asylum law and their anti-asylum bias. In some cases, they combined those shortcomings with allegations of rudeness and unprofessional behavior lodged by the private bar.

The NY Times figured out exactly what is wrong with the Immigration Courts — that they are not really “courts” at all by any normal measure and are operated by individuals who place immigration enforcement above due process and equal justice. Garland is certainly smart enough to have figured out what the NYT Editorial Writers had no difficulty in documenting and describing!

Neither Biden nor Garland would be in their current jobs without the efforts of progressive immigration litigators and scholars over the past four years and the energy and resources they injected into the Biden-Harris campaign when the chips were down! Progressives can’t allow the Biden Administration and Garland to continue to treat them as “chopped liver” while coddling Stephen Miller, Billy Barr, and, outrageously, even “AG for 5 minutes” “Monty Python” Wilkinson’s clearly unjustified and highly inappropriate judicial picks!

These are NOT bureaucratic jobs. “Conditional offers” aren’t “jobs,” particularly when made in the “excepted service” on the eve of or even after a hotly contested election where immigration and human rights were major issues! Immigration Judge positions are important life or death judicial positions in what is now America’s worst and most broken judiciary. In that context, Garland’s inappropriate judicial selections are totally outrageous and set a tone of continuing disrespect and disregard for some of the Democratic Party’s most loyal supporters, their expertise, and the important communities they represent!

Trial By Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Trial by Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Gender-based asylum experts like Professor Karen Musalo, who successfully argued the landmark case Matter of Kasinga before the “Schmidt BIA,” and her protégées are among the many progressive immigration/human rights experts systematically excluded from the “Immigration Judiciary” over the past two decades. Now Garland further demeans these experts by appointing “Billy Barr/Stephen Miller Lite unqualified bureaucrats” @ EOIR rather than reaching out and seeking help from Musalo and other progressive experts in long overdue reforms of the Immigration Courts to end institutionalized racism and a culture of misogyny in asylum adjudication @ EOIR! He then has the audacity to defend his error in judgment with unadulterated BS! Whatever happened to Lisa Monaco and Vanita Gupta, as Garland’s gross mishandling of EOIR turns loyal Biden supporters into vocal, energized opponents?

It’s time for the Biden Administration to pay attention to the progressive immigration/human rights/due process bar! Otherwise, perhaps it’s time for progressives to turn their energies and talents to opposing an Administration that neither represents their views nor values their expertise and tireless efforts in support of American democracy and equal justice for all!

I, for one, did not go to the polls last fall to help more “Billy the Bigot” picks off tainted, exclusionary lists, developed in a culture that actively discouraged progressives and minority attorneys from applying, get jobs as Immigration Judges for which there is no way that they are the best candidates available! And, I’ll bet that neither did other members of the NDPA! Enough is enough! End the EOIR Clown Show!☠️🤡 And, if Garland can’t or won’t do that, then Biden needs a new AG before Garland irrevocably splinters the Democratic base with his gross mishandling of EOIR!

Due Process Forever!

PWS

05-09-21

🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!

Grundoon
Grundoon
From Walt Kelly’s “Pogo”
SOURCE: Pininterest

Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]

https://en.wikipedia.org/wiki/Pogo_(comic_strip)

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2021/4/29/the-dojs-contradictions

Contact

The DOJ’s Contradictions

In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13.  In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1  In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.”  The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum.  In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.

The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General.  Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2

The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.”  Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?

As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees.  Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval.  In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts.  I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.

Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3  The indictment was filed in December, 2020, while the Trump Administration was still in office.  The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).

The indictment contains a specific section titled “Political Influence in El Salvador.”  The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.”  It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence.  The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.”  According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits.  The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”

The indictment also contains a section explaining the purpose of the Ranfla Nacional.  The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”

The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice.  They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law.   In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.”  Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.

So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature?  And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments?  Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.

In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:

immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4

This matter deserves the immediate attention of Attorney General Merrick Garland.  The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death.  At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Zelaya-Moreno v. Wilkinson, No. 17-2284, ___ F.3d ___ (2d Cir., Feb. 26, 2021).
  2. https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly.
  3. E.D.N.Y. Docket No.: 20-CR-577 (JFB).  The Department of Justice’s Press Release can be found here: https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-leaders-charged-terrorism-offenses-united-states.
  4. Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).

APRIL 29, 2021

Reprinted by permission.

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

As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties”  with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.

At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!

Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.

Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!

A few historical notes:

  • I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
  • Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.

Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in! 

Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”

 

Tower of Babel
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-01-21

🤮🆘CHAOS IN COURT!  — Unqualified, Controversial Barr Immigration Judge Quits In SF, Leveling Charges Of Systemic Incompetency @ EOIR HQ — “[I]t is hard to understand how any court system can function like this!” — Actually, It Can’t & Hasn’t Functioned As Anything But A Sick Joke For Years! 🤡🦹🏿‍♂️⚰️ — Garland Slow On The Uptake, As Outrage, Anger At His Inept Stewardship, Lack Of Due Process Leadership, Indifference To Institutionalized Racism Grows In Legal Community! — Tal Kopan Reports @ SF Chron

Trump Clown
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much!
(Officially titled “Ass Clown”)
Artist: Scott Scheidly
Orlando, FL
Reproduced by permission

https://www.sfchronicle.com/politics/article/Controversial-S-F-immigration-judge-quits-16107366.php

WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.

The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.

In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”

Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.

“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”

Ford did not immediately respond to a voice mail seeking comment.

Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.

In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.

. . . . .

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

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Read the rest of Tal’s article at the link.

  • The problems are well-documented;
  • The need for reform is immediate;
  • The solutions are obvious;
  • The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!

So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!

The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.

Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.

Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.

Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?

Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!

Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!

Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!

The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?

“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland? 

🇺🇸🗽⚖️🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

04-18-21

☠️🤮⚰️🏴‍☠️ CONTINUING CAT-ASTROPHE  @ GARLAND’S EOIR: Latest Circuit Rebukes Show EOIR’s Deep-Seated Incompetence In CAT Adjudication Involving Common Situations — “[A]ny reasonable adjudicator would be compelled to conclude that they suffice to establish a ‘reasonable possibility’ that he may be subjected to torture with government acquiescence, as that term has been defined in the relevant regulation.” — EOIR & DHS Were Dispensing Injustice, Ignoring Circuit Precedents, & Mis-Construing Regulations To Deny CAT Even Before Biden-Mayorkas-Garland Continued Illegal Suspension Of Rule Of Law @ Border! PLUS — Answers To Last Week’s EOIR Pop Quiz!

  1. 9th Cir. Shows How IJ Screwed Up “Reasonable Fear” Analysis Of Honduran CAT Claim!

Alvarado-Herrera v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/18-70191.pdf

From court staff summary:

The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their

ALVARADO-HERRERA V. GARLAND 5

apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.

2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-on-cat-mexico-cartels-torrez-de-lopez-v-garland

CA10 on CAT, Mexico, Cartels: Torrez de Lopez v. Garland

Torrez de Lopez v. Garland

“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”

[Hats off to Stephen W. Spurgin!]

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

Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized” BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful. 

Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.

Roger Taney
Roger Taney
PHOTO: Matthew Brady
Public Realm
Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!

The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!

Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection. 

Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear? 

The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing. 

Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.

It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health. 

Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!

Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.

Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”  

Amateur Night
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! 
PHOTO: Thomas Hawk
Creative Commons

Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system. 

It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”

Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!

As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.

Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridge fundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.

Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.

Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.

Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.

They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.

They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!

They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional  Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.

And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”

(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)

Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them! 

Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!

Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.

They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.

Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.

Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.

Yesterday’s stunning  “unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.

It’s not rocket science:

  • Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
  • Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
  • We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
  • Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
  • That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?

Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.

Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.

It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!  Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿‍♂️🏴‍☠️!

PWS

04-17-21

ANSWERS TO LAST WEEK’S “POP QUIZ”

https://immigrationcourtside.com/2021/04/11/amateur-night-the-bijou-sponsored-by-judge-merrick-b-garland-attorney-general-of-the-u-s-an-insiders-assessment-of-latest-eoir/

1) 0

2) 0

3) 0

4) No (none exists)

5) a & b (a, b, & e also acceptable)

6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”

If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!

🏴‍☠️THE PROBLEM @ THE BORDER ISN’T THAT BIDEN HAS  SOFTENED TRUMP’S RACIST, WHITE NATIONALIST, SCOFFLAW RHETORIC! — IT’S THAT BIDEN, GARLAND, & MAYORKAS HAVE FAILED TO RESTORE A ROBUST ASYLUM SYSTEM AT LEGAL PORTS OF ENTRY, STAFFED WITH EXPERT ASYLUM OFFICERS & QUALIFIED IMMIGRATION JUDGES WHO WILL GRANT ASYLUM TO THOSE QUALIFIED, END IDIOTIC TRUMP-ERA MISINTERPRETATIONS & MIS-APPLICATIONS OF ASYLUM LAW, AND ARE DEDICATED TO DUE PROCESS FOR ALL! — Administration’s  Misguided “Trump Lite” Approach Continues To Create Human Misery,☠️⚰️ Trash The Law, 🤮 Without Addressing The Real Problems Generated By Years Of “Malicious Incompetence” 🤡🆘 In U.S. Asylum & Refugee Policies!  — Jack Herrera Reports From The Border For Politico!

Jack Herrera
Jack Herrera
Immigration Reporter and Contributing Editor
Politico
PHOTO: Twitter

https://apple.news/AOAc_keRKS1uOnPDRI3ggHg

TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.

In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.

Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.

“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”

The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.

Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.

“We want to do this the right way,” insists Rosemeri.

The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.

Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.

. . . .

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

Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border. 

The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system! 

Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives! 

The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!

(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)

Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO! 

It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”  That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”

Twisted By The Wind
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters”
“Twisted by the Wind”
By Ron Strathdee

I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.” 

However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!

Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ, Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way). 

That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.

Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.) 

“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.” 

In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in. 

To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR  while their abusers continue unabated in Garland’s name!

Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!

Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by  defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If  “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.

Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!

https://immigrationcourtside.com/2021/03/14/%E2%9A%96%EF%B8%8F%F0%9F%97%BDprofessor-david-a-martin-explains-how-biden-administration-could-advance-its-immigration-agenda-by-abandoning-their-wrong-headed-position-before-the-supremes/

Amateur Night
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door.
PHOTO: Thomas Hawk
Creative Commons

This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says! 

🇺🇸🗽⚖️Due Process Forever!

PWS

04-15-21

POWER FAILURE @ GARLAND’S DOJ THREATENS LIVES, WASTES MONEY, ENDANGERS BIDEN’S SOCIAL JUSTICE AGENDA, TURNS ALLIES INTO OPPONENTS! — NBC News “Gets It!” — Why Doesn’t Judge Garland? — Unqualified Trump/Miller “Burrower” Carl C. Risch Draws Fat Salary From Judge G. @ EOIR As Asylum Seekers, Battered Women, People Of Color Continue To Be Abused In His “Star Chambers!” — Outrage At Garland’s Lousy Performance On EOIR Reform Grows Among Members Of The Due Process Army!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.nbcnews.com/news/amp/ncna1262234

By Adam Edelman @ NBC News:

. . . .

Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.

One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.

His is at least the second conversion in the last year to land at the EOIR, which conducts removal and deportation proceedings in immigration courts across the country.

Recommended

DONALD TRUMP

Documents show high number of permanent job requests from Trump appointees in final year

“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”

Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.

. . . .

**************
Read the full article at the link.

So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!

Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?

He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?

Star Chamber Justice
Judge Garland: “Go faster Carl and David (Garland BIA Chair Wetmore), see how much it takes to make this worthless respondent scream! Remember what your mentor Stephen Miller taught you about the lives and rights of ‘the other.’ Why do you think I’m paying you the ‘big bucks’ and letting you ‘burrow in’ if not to punish and deter those who dare seek due process and humane treatment in MY wholly-owned Star Chambers! I couldn’t have done this at the DC Circuit, but here there are NO RULES, except those we make up for our own benefit, and I aim to keep it that way!”

Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?

Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!

That would also have sent a powerful  “signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR. 

Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.

Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts. 

They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency. 

Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit and  hire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer! 

Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

Garland should already have hired Professor Michele Pistone (Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.

Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.

Could it get any worse? How? 

Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice. 

Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneys during the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!

How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!

I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.

I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!

🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!

PWS

04-11-21

☠️END MISOGYNY 🤮@ EOIR, NOW! — Gorelick & Miller-Muro Are Right, But Abused Refugee Women’s Lives⚰️ Can’t Wait For Congress! — Judge Garland Must Bring Justice ⚖️ To Dysfunctional EOIR Now! — It’s Not Rocket Science! 🚀

Woman Tortured
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Jamie Gorelick
Jamie Gorelick
American Lawyer & Public Servant
PHOTO: Creative Commons
Layli Miller-Muro
Layli Miller-Muro
Founder & Executive Director, Tahirih Justice Center
PHOTO: Creative Commons

https://www.washingtonpost.com/opinions/2021/04/07/us-asylum-law-must-protect-women/

Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.

With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.

To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.

This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.

It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.

In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.

But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.

. . . .

This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.

. . . .

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

Read the full op-ed at the link.

The Rest of the Story

I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.

Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.

The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).

In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!

In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.

Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!

Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.

“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women. 

In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –  a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland. 

Judge Merrick Garland
Judge Merrick B. Garland
Official White House Photo
Public Realm

Yeah, I’ve read about the Judge’s “difficulties” in getting his “A-Team” on board at the DOJ. https://www.washingtonpost.com/opinions/2021/04/07/us-asylum-law-must-protect-women/. So what! 

Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”

“Refugee women get ‘special treatment’ in accordance with  the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
Trial By Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Trial by Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Please, Pick Up The Phone & Your Pen, Judge Garland!

Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.

First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)

Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.

Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.

Finally, sign this order:

All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:

  1. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
  2. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
  3. Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)

In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”

See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle. 

It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!

It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-09-21

⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!

Camille J. Mackler
Camille J. Mackler
Executive Director
Immigrant ARC
PHOTO: JustSecurity

https://www.justsecurity.org/75675/to-fix-the-immigration-system-we-need-to-start-with-immigration-courts/

Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.

But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”

Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.

While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”

This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.

. . . .

Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.

An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.

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

Read Camille’s full article at the link.

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings! 

If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!

Star Chamber Justice
“Justice”
Star Chamber
Style

As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.

Claudia Cubas
Claudia Cubas
Litigation Director
CAIR Coalition
Photo: berkleycenter.georgetown.edu

So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿‍♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.  

Judge Merrick Garland
Judge Merrick B. Garland
Official White House Photo
Public Realm

If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):

  • Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!  
  • Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
  • Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
  • Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
  • Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!

Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!

PWS

04-08-21