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

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

Two items from the indomitable Dan Kowalski @ LexisNexis:

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

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

Judge Marks says:

. . . .

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

More “Unforced Errors” By Garland

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever

PWS

03-14-24

😎⚖️🗽

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

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

Elliot Spagat reports for AP:

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

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

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

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

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

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

. . . .

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

Read the complete article at the above link.

Ukase
Ukase
Public Domain

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

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

Subject: Public Engagements and Speaking Requests

 

Dear Judges Cole and Tsankov:

 

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

 

Thank you,

 

Sheila McNulty

Chief Immigration Judge

Executive Office for Immigration Review • Department of Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

https://illusionofjustice.org/read/lawcourtsandconsequences

Here’s the Executive Summary:

Executive Summary

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

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

Racism in Immigration Law and Policies

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

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

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

Death Penalty Consequences, Traffic Court Rules

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

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

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

4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Second, as the report concludes:

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

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

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

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

🇺🇸 Due Process Forever!

PWS

03-06-24

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

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

⚖️👩🏻‍⚖️👨🏻‍⚖️ NAIJ’s HON. MIMI TSANKOV & HON. SAMUEL COLE HEADLINE SESSION ON BACKLOG & CRISIS IN U.S. IMMIGRATION COURTS @ NATIONAL PRESS CLUB — Wed. Oct. 18  @ 10:00 AM EDT!

Honorable Mimi Tsankov
Honorable Mimi Tsankov
U.S. Immigration Judge
President, National Association of Immigration Judges (“NAIJ”)
Hon. Samuel B. Cole
Hon. Samuel B. Cole
Executive Vice President
NAIJ
PHOTO: NAIJ

Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18

October 16, 2023, 5:13 pm

WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.

pastedGraphic.png

NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)

An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.

Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).

The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.

PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525

pastedGraphic_1.png

Cision

View original content to download multimedia:https://www.prnewswire.com/news-releases/federal-immigration-judges-mimi-tsankov-and-samuel-b-cole-to-address-immigration-courts-backlog-at-headliners-newsmaker-oct-18-301958051.html

SOURCE National Press Club

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The dysfunctional U.S. Immigration Courts are the where “the rubber hits the road” for American justice — the “retail level” of our court system. Deterioration of individual rights in the U.S. legal system for immigrants, people of color, women, non-Christian religious minorities, and the LGBTQ+ community can all be traced to antecedents in the “too often due process and common sense free zone” of EOIR courts held “captive” within our DOJ. See, e.g., https://immigrationcourtside.com/2023/10/08/%f0%9f%a4%af-jason-the-asylumist-dzubow-explores-the-incredible-exploding-asylum-backlog-predictably-eoirs-aimless-docket-reshuffling/

Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.

This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)

The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.

Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.

🇺🇸  Due Process Forever!

PWS

10-17-23

 

THE GIBSON REPORT — 10-10-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — AMONG HEADLINERS: Ignoring Kids At Risk; Biden’s Marihuana Pardon Unlikely To Help Many Migrants; Garland’s DOJ On Wrong Side Of IJ “Muzzling” Suit!

 

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

NEWS

 

Appeals Court Says DACA Is Illegal but Keeps Program Alive for Now

NYT: The decision from the three-judge panel on the U.S. Court of Appeals for the Fifth Circuit — one of the country’s most conservative federal appellate courts — affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.

 

Biden’s marijuana pardon not likely to help many immigrants with deportation cases

SD Union-Trib: Simple marijuana possession is usually charged at the state rather than federal level, so if governors follow Biden’s lead, there could be a wider impact on immigration court cases…Biden’s Thursday proclamation also explicitly says that undocumented noncitizens are not eligible for the pardon.

 

New York Faces Record Homelessness as Mayor Declares Migrant Emergency

NYT: Mayor Eric Adams stepped up calls for state and federal aid as the number of people in city shelters topped 61,000. See also Democrat-led Texas city steps up migrant busing to New York, outpacing Republican effort; Documents: Florida migrant transport planning began in July.

 

“A Failure on All Our Parts.” Thousands of Immigrant Children Wait in Government Shelters.

ProPublica: The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.

 

Migrants from three countries are driving the spike in encounters at the southern border, swamping a backlogged immigration system

CNN: Migrants from just three countries – Venezuela, Nicaragua and Cuba – made up about 56,000 of those encounters, or about 28 percent, federal data shows. See also US immigration: Why Indians are fleeing halfway around the world.

 

Blinken Announces Aid for Migrants, Refugees

VOA: Shortly before attending OAS ministerial talks on the perplexing question of migration in the western hemisphere, Blinken told reporters of “new humanitarian and bilateral and regional assistance” to the tune of $240 million. See also United States fell far short of refugee goal last fiscal year

 

Critic of Biden border policy in line to oversee DHS budget

Roll Call: With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.

 

Border agents fired fatal shots after migrant grabbed weapon, FBI says

WaPo: A Mexican man who was shot fatally inside a Border Patrol station in Texas this week had grabbed an “edged weapon” off a desk inside the facility and continued to approach U.S. agents after they attempted to stop him with a Taser, the FBI said in a statement late Wednesday.

 

2 Russians Seek Asylum in US After Reaching Remote Alaska Island

VOA: Two Russians who said they fled the country to avoid military service have requested asylum in the U.S. after landing in a small boat on a remote Alaska island in the Bering Sea, U.S. Sen. Lisa Murkowski’s office said Thursday.

 

Undaunted by DeSantis, immigrant workers are heading to Florida to help with hurricane cleanup

CNN: Word that immigrants are now coming to help clean up some of his state’s most storm-ravaged communities hasn’t softened the governor’s stance.

 

LITIGATION & AGENCY UPDATES

 

High Court Won’t Review ‘Unfair’ Deadline For Deported Man

Law360: The U.S. Supreme Court on Monday turned away a deported Salvadoran man’s bid to look into an allegedly “unfairly” crafted deadline for filing deportation order reconsideration requests, ending his decades-long hope of returning to the U.S.

 

5th Circ. Affirms Toss Of DACA, Asks For Review Of Final Rule

Law360: The Fifth Circuit on Wednesday affirmed a Texas judge’s ruling that vacated the Obama administration’s Deferred Action for Childhood Arrivals program, which has protected some young immigrants from deportation, and barred new applicants, but asked the lower court to review the Biden administration’s recent final rule on the DACA program.

 

CA5 On Evidence, CAT, Cameroon: Ndifon V. Garland

LexisNexis: Ndifon claims the BIA failed to consider country conditions evidence when separately analyzing his CAT claim. We agree.

 

CA9 on Consular Reviewability: Muñoz v. Dept. of State

LexisNexis: Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero’s visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.

 

Matter Of Bador, 28 I&N Dec. 638 (BIA 2022)

LexisNexis: A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition

 

Minn. Judge Ends Migrant Detention Suit, After $80K Deal

Law360: A Minnesota federal judge ended an American Civil Liberties Union-backed suit alleging that U.S. Customs and Border Protection assaulted and degraded two teenagers in its custody, after the agency agreed to pay the girls $80,000 to resolve the claims.

 

Fla. Seeks Trial Over Alleged US Policy Not To Detain Migrants

Law360: Florida pushed for a trial to resolve its contention that the Biden administration has a policy of releasing immigrants subject to detention, but asked a federal judge to first declare that the state has standing to challenge the alleged policy.

 

Feds Want Immigration Judges’ ‘Muzzled’ Speech Suit Axed

Law360: The head of a U.S. Department of Justice office on Friday asked a Virginia federal judge to nix a suit filed by an immigration judges association claiming they are “muzzled” by a policy that they say bars them from discussing their personal views on immigration, contending that a new policy encourages speech and simply requires supervisory approval.

 

USCIS 30-Day Notice and Request for Comment on USCIS Online Account Access

AILA: USCIS 30-day notice and request for comment on USCIS’s Online Account Access system, formerly called Identity and Credential Access Management (ICAM). Comments are due 11/7/22.

 

CBP Announces CDC Screening of Individuals with Travel Nexus to Republic of Uganda

AILA: Following an outbreak of Ebola in the Republic of Uganda, the CDC announced enhanced public health screening for flights departing after 11:59 pm (ET) on 10/10/22, for flights carrying travelers with nexus to Uganda. Said flights will be funneled through JFK, EWR, IAD, ATL, and ORD.

 

RESOURCES

 

EVENTS

 

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Given the disgraceful mess @ EOIR, it’s understandable that Garland & Co. fear IJ’s speaking out in public. It’s just not a justifiable position, particularly for a Democratic Administration.

🇺🇸Due Process Forever!

PWS

10-11-22

⚖️🗽SOCIAL JUSTICE SUNDAY @ COURTSIDE WITH PROF/REV CRAIG MOUSIN OF DEPAUL LAW — 1) Restore The Refugee Act Of 1980 To Functionality; 2) Let Young People Read — Enforce the 1st Amendment Against Far-Right Book Burners!🔥📚👩‍🚒

Craig Mousin

pastedGraphic.png

  • cmousin@depaul.edu
  • Ombudsperson
  • Refugee and Forced Migration Studies, Grace School of Applied Diplomacy

Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .

Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee. 

Craig writes:

Comment: Paul,

You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:

https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.fox32chicago.com%2Fvideo%2F1083587&data=05%7C01%7CCMOUSIN%40depaul.edu%7C657c113c57fc4b47977008da54895361%7C750d3a3f1f464da28a647605e75ea2f9%7C0%7C0%7C637915246031565627%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=R4WzOvpSp5k92DO8NgWD2IQjGyHBoEyq7krkBY82ESY%3D&reserved=0

Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:

https://lawfulassembly.buzzsprout.com/1744949/10803534-episode-27-stop-the-burning

All the best,

Craig

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

Thanks, Craig, for all you do. 

Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/

In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.

We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,  and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments. 

Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes. 

When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!

“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.

Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!

🇺🇸 Due Process Forever!

PWS

06-26-22

🤯ADMINISTRATIONS CHANGE  — EOIR “CULTURE” NOT SO MUCH! — “We’d Rather Fight Than Fix,” Remains Motto Of Garland’s Failed “Courts!”🤮

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Tal Kopan @ SF Chron reports on latest public miscue:

A California lawyer tweeted what she saw in immigration court. The DOJ demanded she delete it

By Tal Kopan

WASHINGTON — On Feb. 1, attorney Monika Langarica was in a San Diego courtroom watching as the Biden administration resumed hearing cases on a controversial immigration policy that requires migrants to wait in Mexico while they plead their case to enter the U.S. That evening, she wrote a series of tweets describing what she saw.

The next day, she received an email from the Justice Department that shocked her: The administration asked her to delete the tweets. They claimed she violated a policy against making a record of immigration court proceedings and threatened potential criminal penalties if she committed “further violations.”

The Justice Department retracted its request and apologized to Langarica after The Chronicle inquired about the threat, saying further review confirmed she was not tweeting from the courtroom and thus did not violate any policies.

Still, the surprising episode raised several issues, including First Amendment concerns, issues of transparency in the often secretive immigration courts as well as criticisms of the policy at the heart of the dispute.

“It (was) shocking, because we are in our right to observe these proceedings, we are in our right to share with the public what is happening in these court rooms,” Langarica said in an interview before the apology had been issued. Langarica is an attorney with the UCLA Center for Immigration Law and Policy and formerly with the San Diego American Civil Liberties Union.

More here: https://www.sfchronicle.com/politics/article/A-California-lawyer-tweeted-what-she-saw-in-16841515.php

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

Why would an agency with failure, problems, and valid criticism “coming out it ears” 👂 be wasting official time monitoring the Twitter accounts of court observers?

Assuming that were some legitimate reason, why wouldn’t the first reaction to Ms. Langarcia’s tweets be “Hey, let’s sit down with you and your friends and figure out how to fix this?”

Instead of having more “flackies” in their bloated bureaucracy to suppress the public trappings of failure and to “massage the message,” why not put the resources into getting better bodies out there to FIX THE MYRIAD OF PROBLEMS crippling the agency and making it a parody of justice? It’s going to take more than a band of public apologists in the PIO to outsmart brilliant, informed investigative reporters like Tal! 

It’s little wonder that EOIR doesn’t want light shed on what’s really happening in their “Star Chambers!” 

Star Chamber Justice
“Scream as loud as you want. Nobody’s going to hear you!”

Reminds me of one of my favorite “EOIR War Stories.” My Arlington colleague Judge Wayne “Tell It Like It Is” Iskra once truthfully said in open court said what most experts and his colleagues privately had been saying for ages: “This system is broken!” Unknown to Judge Iskra, however, a reporter was sitting in the audience and the comment received publicity, the thing that EOIR fears most!

Coming from a former two-time Chief Judge of the U.S. Army Criminal Courts, hardly known as a “bleeding heart liberal,” one would anticipate that Iskra’s blunt assessment might have spurred some immediate corrective action and internal reforms. But, the only action it created at EOIR was basically to tell Iskra to “sit down and shut up.” 

As always, EOIR was more concerned about “protecting itself” from a judge speaking truth than dealing with the consequences of that truth. As a result, the system is even more broken now than it was when Iskra had the audacity to “speak truth to power!”

🇺🇸Due Process Forever!

PWS

02-08-22

🇺🇸🗽⚖️BATTLING THE KAKISTOCRACY: Fearless Knightess 🛡⚔️Of The Round Table Judge Polly Webber Evicerates FLRA’S Corrupt Silencing Of Immigration Judges — “DOJ is trying to silence NAIJ from letting the world know that atrocities are at work behind the wall surrounding the Immigration Court!”

Polly Webber
Hon. Polly Webber
US Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
Fiber Artist
Knightess
Knightess of the Round Table

https://www.google.com/url?q=https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/polly-a-webber-muzzling-america-s-immigration-judges-is-a-travesty&source=gmail-imap&ust=1606421065000000&usg=AOvVaw3hYQvSKRmJ7U2inPKx49Sf

Polly A. Webber: Muzzling America’s Immigration Judges is a Travesty

Polly A. Webber, Nov. 19, 2020 – Muzzling America’s Immigration Judges is a Travesty

“It can’t be much of a surprise that I should have deep insight and strong feelings about the current state of our Immigration Courts, after more than forty years working in immigration law, twenty-one of them as an Immigration Judge appointed by Attorney General Janet Reno in 1995. Having retired in 2016, the issues I noted have become radically more pronounced and dire.

What do children in cages, refugee camps in Mexico, TV judges, lengthy delays and erratic scheduling have in common? They are all a part of the new look of the Trump Immigration Court, a shift in style and substance that is extraordinarily dismaying in many of its aspects. The Immigration Court is not an independent judicial tribunal. It is housed in a small agency within the Department of Justice (DOJ). Because of that placement, the Court has been plagued by a conflicted, dual identity, aspiring to be an independent tribunal while housed in law enforcement. It was only a matter of time before this politicized enforcement branch infected the Court.

Immigration Judges were recognized in 1979 as a collective bargaining unit called the National Association of Immigration Judges (NAIJ). Why did the judges feel a need to seek the protection of a labor organization? Quite simply, almost none of the people managing the huge bureaucracy of the Court actually spend any time in courtrooms. These high-level policy makers often have no practical knowledge of how the Court functions, and this defect has persisted through multiple political administrations. The DOJ issues policy and practice memoranda that bind judges without consulting them about their practical impact. Thus, a need arose for collective bargaining to assure input from the judges who implement these edicts.

On November 2nd, in an action by DOJ to decertify NAIJ, the Federal Labor Relations Authority (FLRA), remanded the action back to the Regional Director for a final decision, finding that Immigration Judges influence policy and are thus managers. That notion is laughable. Applying established law to a particular case is not influencing policy. Virtually every decision the judges make is subject to review and reversal by higher courts. Generally, judges are under the thumb of DOJ, ignored or ridiculed by leadership. It has gotten far worse for my colleagues after I left at the end of 2016.

. . . .

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

Read the rest of Polly’s article the link!

Given the grotesque level of malicious incompetence from DOJ and their EOIR toadies, it’s no wonder they want to suppress the truth about the ugly mess in the Immigration Courts. The Falls Church Clown Show 🤡 is coming to an end!

Due Process Forever!

PWS

11-20-20

⚖️👨🏻‍⚖️👩‍⚖️CHANNELING THE OUTRAGE AT THE FLRA’S OVERT UNION, DUE PROCESS, AND FIRST AMENDMENT BASHING! — Read Jeffrey S. Chase’s Penetratingly Indignant Analysis Of This Sham Decision — Regime’s Larger Plan To Abolish Unions, Politicize, & “Dumb Down” Career Civil Service Should Be D.O.A. In Biden-Harris Administration! 

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

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/11/6/the-outrageous-decision-to-decertify-the-ijs-union&source=gmail-imap&ust=1605304468000000&usg=AOvVaw15nn5hFuo-vhDvBl2kSJF4

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

The Outrageous Decision to Decertify the IJ’s Union

Our attention is understandably focused elsewhere right now.  However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union.  While this might seem to be a minor issue at the moment, it is not.   At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.

The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago.  It weathered a similar decertification effort in 2000.  Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize.  Under federal labor law, one is classified as a manager if their position “influences policy.”  20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion.  In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy.  The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of  Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”

In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novo  review, their findings of fact are now reviewed for clear error.  Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy.  So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification.  At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision.  As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified  that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.”  Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.

The Regional Director dismissed the claim based on the above arguments and testimony.  But there was always a sense that the administration had something up its sleeve.  That “something” turned out to be two Trump appointees,  FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott.  They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them.  The two stayed true to form in decertifying the NAIJ.  The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion  in the NAIJ’s case, which concluded with the following language:

This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”

By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.

First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach.  Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards).  As several leading scholars explained in an article in Slate:  “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context  of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”

But of great importance is a point I raised last year in an article I wrote for Law360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:

while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ.  In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views.  Such actions would constitute a troubling attempt by the executive branch to influence case outcomes.  Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.

Just prior to the FLRA’s decision, an executive order  creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views).  By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order.  To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.

While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant.  First, the earlier decertification effort in 2000 occurred under a Democratic administration.  Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration.  Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.

The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term.  It is therefore hoped that readers will amplify the news of the decision and all it means.  It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision.  And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct

There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration.  FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent.  But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.

Copyright 2020 Jeffrey S. Chase.  All rights reserved. reprinted with permission.

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

Thanks for speaking out so forcefully and articulately, my friend,

I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.

Due Process Forever!

PWS

11-09-20

🇺🇸⚖️🗽👍🏼🏆👏🏽GOOD GOVERNMENT: BELEAGUERED FEDS WOULD FIND WELCOME RESPITE IN BIDEN ADMINISTRATION! — This Election Could Be “Last Call” For One Of The Cornerstones Of Our Democracy — A Competent, Honest, Career Civil Service!

https://www.washingtonpost.com/politics/biden-federal-workers-unions/2020/08/26/62595932-e71c-11ea-a414-8422fa3e4116_story.html

Joe Davidson reports for WashPost: 

If Joe Biden is elected president, he promises to overturn President Trump’s aggression against federal employee unions, support regular pay raises for federal employees and protect their workplace rights.

Biden, the Democratic nominee, has pledged to upend Trump’s actions concerning federal labor organizations on Inauguration Day in January. Trump’s assaults were codified in three executive orders he issued in 2018. They systematically undermined the ability of unions to represent not only their members, but all employees in agency collective-bargaining units.

Saying Trump “has loosed a direct attack on our members’ union rights and dignity on the job,” the American Federation of Government Employees (AFGE) questionnaire to Biden outlines policies the largest federal union wants reversed.

“This includes purging lawful representational activity from government worksites and equipment, weaponizing the bargaining process to propose, and in some cases impose, one-sided contracts, attacking our statutory right to collect voluntary dues, crippling our ability to mediate disputes on duty time, and more,” says the questionnaire’s introduction. “Taken together, these attacks constitute more than just a threat to our members’ livelihoods, they threaten the survival of the merit-based civil service system on which our government is built.”

AFGE endorsed Biden last month. In two internal polls, AFGE said its members supported Biden over Trump by more than 30 points.

The first question asked Biden to commit to overturning the executive orders and other directives that weaken employee due process and collective bargaining rights “on your first day in office.” Biden agreed and said “the federal government should serve as a role model for employers to treat their workers fairly.”

“On my first day in office,” he added, “I will restore federal employees’ rights to organize and bargain collectively, restore their right to official time, and direct agencies to bargain with federal employee unions.” Official time allows union leaders to represent employees, including those who are not union members, in grievance procedures and matters involving issues such as workplace safety and productivity, while being paid by the government.

[If he gets a presidential Day 1, Biden has a nearly endless list of ways to spend it]

In addition to Biden’s answers, the Democratic Party Platform promises to “strengthen labor rights for the more than 20 million public-sector employees” at all levels by supporting legislation that would “provide a federal guarantee for public-sector employees to bargain for better pay and benefits and the working conditions they deserve.”

While Trump has been relentless in his federal union offensive, all was not copacetic when Biden served as Barack Obama’s vice president. Government workers vehemently opposed three federal pay freezes imposed under Obama, with congressional approval, during an era of budget tightening.

But the Obama-Biden administration did not seek to fundamentally undermine unions as Trump has done or diminish federal workers. Obama’s stated effort to “make government cool again” contrasts sharply with Trump’s “drain the swamp” attitude toward government. Trump did not respond to AFGE’s questionnaire.

. . . .

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

Read the complete article at the link. 

Just another instance where Biden is going to have to separate himself from some misguided, occasionally weak-kneed and shortsighted, Obama-era policies and establish himself as his own man, with a decidedly more practical, aware, and progressive approach. And, as a long-time public servant himself (albeit an elected one) — whose career has in many ways been built and furthered by the skills, expertise, and contributions of civil servants in all branches of Government — I believe he is up to the task. Indeed, he might well be the best-qualified candidate in my lifetime to save and enhance our now reeling and crumbling civil service — one of the “crown jewels” of American democracy now under unrelenting assault from a thoroughly corrupt Trump and his GOP nihilist “wrecking crew.”

For example, look at how the cowardly and totally unethical “Billy the Bigot” Barr tried to “punish” Judge Ashley Tabaddor and the National Association of Immigration Judges (“NAIJ”) (disclosure: I am a proud retired member) for speaking “truth to power.” As the only ones authorized to speak out on behalf of Immigration Judges (regardless of membership in the NAIJ), Judge Tabaddor and other NAIJ officials exposed the massive corruption, gross mismanagement, improper politicization, and medically dangerous working conditions at EOIR! As a result, Billy tried to silence her and the NAIJ by filing a frivolous action to “decertify” the NAIJ based on bogus reasons, many rejected by the FLRA in the past. This abuse of Government resources and process by Billy has since been dismissed after hearing by a FLRA official, as previously reported in “Courtside.”

As a civil servant for more than 35 years, serving in Administrations of both parties, at levels from “worker bee” to “Senior Exec,” and a veteran of 21 years on both levels of the Immigration Bench (when it actually more resembled a “real court” than  the ridiculous parody engineered by Gonzo Apocalypto and Billy the Bigot), I know what I’m speaking about. 

Incidentally, I was one of the “founding brothers and sisters” of the BIA employees’ union in the 1970s, and then went on to battle that same union before the FLRA during my tenure as BIA Chair in the late 1990s. So, like many issues in immigration during my career, I understand both sides.

But, I never questioned the BIA union’s authority to speak for the staff. In most ways, it was a good “focal point” for getting important issues out in the open and resolving them, even if the process was occasionally contentious and frustrating. And, I’d have to admit to getting some good ideas on management improvements from union officials. So good, in fact, that I actually hired some of them to become staff managers at the BIA.

Over my career, I was involved in thousands of asylum and refugee cases, many of them successful. Many were fleeing countries with great progressive “paper constitutions” and sometimes even very “facially reasonable” statutory law. A number of these countries had even signed the U.N. Refugee Convention. What often made these countries “persecutors” as opposed to “protectors” was in the “execution” rather than the “black letter law.” 

Two characteristics that many of these persecutors had in common were: 1) an authoritarian executive who controlled a corrupt civil service usually “on the take,” staffed with family members, tribe members, or “party regulars,” and personally loyal to the leader rather than the constitution and statutes; and 2) “courts” that were either instruments of the leader and his tribe or party or too feckless to stand up against executive tyranny.

Under Trump and his corrupt GOP cronies, the US is well on its way to this type of “banana republic” public service in all three branches. And, don’t thank that a healthy economy or a robust stock market are “proof” against tyranny. Today’s China, as well as Nazi Germany and Imperial Japan, are prime examples of how “economic success and power” do not necessarily equate with good government, equality, or lack of repression.

This November, vote like your life and the future of our democracy depend on it! Because they do!

PWS

08-26|-20

🇺🇸JULY 4 SPECIAL🗽: CRISTIAN FARIAS @ KNIGHT INSTITUTE WITH LOADS OF “PAYWALL-FREE” ONLINE RESOURCES HIGHLIGHTING REGIME’S ABUSE OF IJ’S 1ST AMENDMENTS RIGHTS AS WELL AS PUBLIC’S RIGHT TO KNOW ABOUT THE FRAUD, WASTE & GROSS ABUSES UNFOLDING DAILY IN AMERICA’S MOST OUTRAGEOUSLY UNFAIR AND MISMANAGED “COURT” SYSTEM! — Our Taxpayer Funds Are Being Flushed Down The Toilet 🚽 By “Billy The Bigot” & His “Maliciously Incompetent” Gang Of White Nationalist Enablers & Promoters @ EOIR!

 

Cristian Farias
Cristian Farias
Writer in Residence
Knight First Amendment Institute

Cristian writes:

Hi, Paul:

Lots of other, nonpaywalled coverage of this new case:

Link to complaint:

https://knightcolumbia.org/cases/naij-v-mchenry

https://www.inquirer.com/news/immigration-judges-trump-lawsuit-free-speech-eoir-columbia-knight-center-20200701.html

https://abcnews.go.com/Politics/immigration-judges-challenge-doj-limits-public-speaking/story?id=71552573

https://thehill.com/homenews/administration/505388-immigration-judges-union-sues-justice-dept-over-policy-restricting?rnd=1593610305

https://in.reuters.com/article/usa-court-immigration-judges/immigration-judges-challenge-justice-dept-over-policy-gagging-them-from-public-speech-idINKBN24263H?il=0

https://www.cnn.com/2020/07/01/politics/immigration-judges-lawsuit/index.html

Thank you for all you do,

Cf.

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

As many of you know, Cristian is a contributor to Courtside and a tireless advocate for free speech and Constitutional rights for everyone in America.

Thanks, Cristian, for all you do for America!

🇺🇸Celebrate America’s birthday by standing up for our Constitution and human dignity against the racism, ignorance, hate, & tyranny of the Trump regime!🗽

👍🏼Due Process Forever!⚖️

Here’s my previous reporting on this:

🤡CLOWN COURT REPORT: Dysfunctional “Court” System Notorious ☠️ For Denying Migrants’ Rights Forces Own Judges To Sue In Federal Court To Protect Their Individual Constitutional Rights!  — No Wonder The Mis-Management-Induced Backlogs Are Endless & Growing!

PWS

07-04-20

🤡CLOWN COURT REPORT: Dysfunctional “Court” System Notorious ☠️ For Denying Migrants’ Rights Forces Own Judges To Sue In Federal Court To Protect Their Individual Constitutional Rights!  — No Wonder The Mis-Management-Induced Backlogs Are Endless & Growing!

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

https://www.law.com/nationallawjournal/2020/07/01/immigration-judges-to-sue-doj-alleging-unconstitutional-gag-on-speech/

Immigration Judges Sue DOJ, Alleging Unconstitutional Gag on Speech

It’s the latest clash between the immigration judges’ union and the Justice Department, after DOJ officials pushed to decertify the union.

By Jacqueline Thomsen | July 01, 2020 at 09:47 AM

A union of immigration judges is suing the Department of Justice over a policy allegedly restricting them from speaking publicly about immigration and other issues in violation of their constitutional rights, the latest escalation of tensions between the union and the federal department where they work.

The lawsuit, filed Wednesday on behalf of the National Association of Immigration Judges by attorneys with the Knight First Amendment Institute and Virginia attorney Victor Glasberg, says DOJ’s Executive Office for Immigration Review in 2017 began requiring the judges to seek preapproval to speak in their own capacity, and not on behalf of the office.

That was replaced earlier this year with a “more restrictive policy,” which mandates the judges cannot speak publicly about immigration or DOJ policies, and must obtain approval to speak, write or talk with members of the media about any other topic.

The lawsuit notes the policy was implemented during a series of changes in the immigration system and that the immigration judges are “uniquely positioned to inform the public on these issues, but the 2020 policy prevents them from doing so.”

. . .

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

Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of  Jacqueline’s article at the link.

The “DOJ/EOIR Clown Show” 🤡  rolls, on leaving the public interest in the dust and the road littered with the broken bodies and crushed souls of bona fide asylum seekers and other mistreated migrants.

Really, isn’t this continuing circus and parody of justice supposed to be under “adult supervision?” Obviously, both Congress and the Article III Courts have taken a pass on the role. So, what, in fact, are they good for?

I do understand why those responsible for this mess don’t want to be publicly “outed” for the fraud, waste, and abuse that they have created. The desire to escape accountability runs deep in bureaucracies, particularly in an Administration that lies about almost everything and consistently refuses to take responsibility for its own innumerable screw-ups. Dishonesty and lack of accountability starts at the top of this rubbish heap. 

Due Process Forever! Clown Courts 🤡 Never!

PWS

07-01-20

FINALLY, TOGETHERNESS REIGNS SUPREME👩🏻‍⚖️❤️👨‍⚖️: Unanimous Court, Per Justice Ginsburg, Pulverizes 9th Circuit For Stretching To Hold Immigration Crime Unconstitutional, Remands — UNITED STATES v. SINENENG-SMITH

https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. SINENENG-SMITH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–67. Argued February 25, 2020—Decided May 7, 2020

Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without au- thorization in the United States to file applications for a labor certifi- cation program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million.

Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private financial gain,” §1324(a)(1)(B)(i). In the District Court, she urged that the pro- visions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted, as relevant here, on two counts under §1324(a)(1)(A)(iv) and (B)(i).

Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the par- ties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the

2 UNITED STATES v. SINENENG-SMITH Syllabus

First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad.

Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.

That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical trans- formation of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 3–9.

910 F. 3d 461, vacated and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

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

👎Justice Thomas used his concurring opinion as an opportunity to attack the “overbreadth doctrine,” and to solicit future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

It’s interesting how moderate and liberal judges who believe in the Constitution, the rule of law, and standing up for individual rights in the face of government overreach are often forced to deny that they are “activists.” By contrast, right wing judges often make little or no attempt to disguise their activist, often anti-human-rights, “turn back the clock to the bad old days,” agenda and to use their opinions as a forum to critique and solicit challenges to rules of law they don’t like. Often such rules under attack from the judicial right tend to vindicate the rights and humanity of individuals, particularly minorities and other vulnerable individuals, over corporate, government, financial, and other elitist interests.

Additionally, as with Thomas, the the right-wing judicial activists customarily harken back wistfully to a past “golden” age of American Jurisprudence when the exclusively white, male, nearly 100% Christian Supremes were perfectly happy to look the other way and bend the rules to favor ruling elites over African Americans, women, children, the poor, non-Christians, and others who weren’t part of the “ruling elites.” Thomas laments the abandonment of the views and methods of the “18th & 19 century” American judiciary. Most ironically, under those rules and the “world outlook and values” they often embodied, it’s highly unlikely that Thomas himself would have been able to attend Yale, become a Justice, or otherwise be allowed and encouraged to reach his full potential.

Quite contrary to Thomas’s argument, we can’t and shouldn’t take “value judgement” out of judging. Indeed, Thomas’s plea to let the Legislature and the Executive run roughshod over constitutional rights if they choose to do so is, in and of itself, a clear “value judgment” as to what best serves society. Making “value judgments” is at the heart of all judging. That isn’t the problem. No, the real problem is the lack of consistent human (and humane) values, practical experience, and human empathy in too many of today’s Federal Judges, particularly those appointed by Trump and Moscow Mitch.

At least we clearly know what’s coming in the future from the “Trump Judiciary” and their cheerleaders like Thomas. Consequently, it’s critically important that “Democrats and liberals” act accordingly the next time they get control over Federal Judicial appointments.

Due Process Forever!

PWS

05-07-20

 

 

 

🤡🤡CLOWN COURT REPORT: As Due Process Goes Into “Death Spiral,” Regime Muzzles Immigration Judges!

Cristian Farias
Cristian Farias
Writer in Residence
Knight First Amendment Institute

Cristian Farias reports in The Atlantic:

For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.

Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.

Read: The thousands of children who go to immigration court alone

It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”

Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice  and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.

In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.

Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.

The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)

. . . .

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

Read Cristian’s complete article at the above link.

”The truth will set you free.” But, at EOIR, the truth will get you fired!

Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.

Bailey’s Crossroads Pin
Bailey’s Crossroads Pin

NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/

However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!

Due Process Forever; Clown Courts Never!

 

PWS

03-03-20

AR & REST OF PACK ASK FANS TO JOIN THEM IN STANDING UP FOR SOCIAL JUSTICE BEFORE TOMORROW NIGHT’S GAME WITH BEARS AT LAMBEAU!

http://www.greenbaypressgazette.com/story/sports/nfl/packers/2017/09/26/packers-players-invite-fans-join-moment-unification/706899001/

The Green Bay Press Gazette reports:

“In a statement issued Tuesday evening, Green Bay Packers players invited fans attending their game Thursday against the Chicago Bears to join them in locking arms together during the national anthem at Lambeau Field.

Here is the complete statement:

“The NFL family is one of the most diverse communities in the world. Just look around! The eclectic group of players that you root for, the coaches you admire, the people you sit next to in the stands, those high-fiving on military bases, fans at the sports bar or during tailgate parties—we all come from different walks of life and have unique backgrounds and stories.

“The game of football brings people together. As NFL players, we are a living testimony that individuals from different backgrounds and with different life experiences can work together toward a common goal.

RELATED: Aaron Rodgers asks fans to lock arms in unity during anthem

“This Thursday during the national anthem at Lambeau Field, Packers players, coaches and staff will join together with arms intertwined—connected like the threads on your favorite jersey. When we take this action, what you will see will be so much more than just a bunch of football players locking arms. The image you will see on September 28th will be one of unity. It will represent a coming together of players who want the same things that all of us do—freedom, equality, tolerance, understanding, and justice for those who have been unjustly treated, discriminated against or otherwise treated unfairly. You will see the sons of police officers, kids who grew up in military families, people who have themselves experienced injustice and discrimination firsthand, and an array of others all linking together in a display of unity.

“Those of us joining arms on Thursday will be different in so many ways, but one thing that binds us together is that we are all individuals who want to help make our society, our country and our world a better place. We believe that in diversity there can be UNI-versity. Intertwined, we represent the many people who helped build this country, and we are joining together to show that we are ready to continue to build.

“Let’s work together to build a society that is more fair and just.

“Join us this Thursday by locking arms with whoever you’re with, stranger or loved one, wherever you are—intertwined and included—in this moment of unification.”

– The Packers Players”

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Go Pack!