HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

 

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

 

Tanvi Misra reports for Roll Call:

 

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the borderDHS advances plan to get DNA samples from immigrant detaineesWhite House plans to cut refugee admittance to all-time low

 

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James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

Volume 90%

 

The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

 

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

 

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that  also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

 

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

 

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

 

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

 

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21st Century America?

 

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”  

We’re in a war for the survival of our democracy and the future of humanity.  There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

 

PWS

 

10-31-19

“THE ASYLUMIST” INTERVIEWS RETIRED CHIEF IMMIGRATION JUDGE MARYBETH T. KELLER – Chronicling The Rise & Sad Demise Of EOIR: From Protector To Abuser Of Due Process: “Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS.”

MaryBeth Keller
Hon. MaryBeth T. Keller
Retired Chief Immigration Judge
Jason Dzubow
Jason Dzubow
The Asylumist

 

http://www.asylumist.com/2019/10/15/an-interview-with-marybeth-keller-former-chief-immigration-judge-of-the-united-states/

 

MaryBeth Keller was the Chief Immigration Judge of the United States from September 2016 until July 2019. She was the first woman to hold that position. The Asylumist sat down with her to discuss her career, her tenure as CIJ, and her hope for the future of the Immigration Courts.

Asylumist: Tell us about your career. How did you get to be the Chief Immigration Judge of the United States?

Judge Keller: I was appointed to the position by Attorney General Loretta Lynch in 2016. By that time, I had been at EOIR (the Executive Office for Immigration Review) for 28 years, and had a lot of experience with and knowledge of the entire organization, especially the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA”).

After law school at the University of Virginia, I clerked for state court judges in Iowa. I wanted to return to DC, and in those days – the late 1980s – there were a lot of options. I submitted my resume to a federal government database and was selected to interview at the BIA for a staff attorney position (they liked the fact that I had taken an immigration law class with Professor David Martin at UVA). At the interview, I knew it would be an incredible job. The BIA is the highest level administrative body in immigration law, and the people I met seemed happy to be there. I thought I would stay maybe two years and then move on, but I ended up remaining with EOIR for 31 years.

MaryBeth Keller

I was at the BIA for about 15 years, nine of those as a manager. In my early days as a staff attorney, I helped revitalize the BIA union, which was basically defunct when I arrived. Some employees had wanted to simply decertify the union, but a colleague and I convinced the majority of attorneys and staff that it could be a useful organization, so they voted to keep it. I was the union president for several years. After I later became a manager, my colleagues joked that my penance for having led the BIA union was to have to deal with the union from the other side. I helped then-Chairman Paul Schmidt revamp and restructure the BIA in the mid-1990s.

From there, I served as EOIR’s General Counsel and was involved with many reforms, including the institution of the first fraud program and a program to address complaints about the conduct of Immigration Judges. This ultimately led to my appointment as the first Assistant Chief Immigration Judge (“ACIJ”) for Conduct and Professionalism (“C&P”). At the time, David Neal was the Chief Immigration Judge, and we built the C&P program from whole cloth. In addition to responsibility for judge conduct, performance, and disciplinary issues, I supervised courts from headquarters and was the management representative to the judges’ union. All of this experience led to me to the position of Chief Judge.

Asylumist: What does the CIJ do? How is that position different from the EOIR Director or General Counsel?

Judge Keller: I view the CIJ’s job as leading the trial level immigration courts to execute the mission of EOIR, including, most importantly, managing the dockets to best deliver due process. In practical terms, this involved hiring and training judges and staff, determining the supervisory structure of the courts, directing the management team of Deputies, ACIJs, and Court Administrators, overseeing the Headquarters team that supports the field, including an administrative office, a business development team, legal advisers, an organizational results unit, and an interpreters unit. The CIJ also collaborates with the other senior executives such as the Chairman of the BIA, the General Counsel, and the Director of Administration to coordinate agency activities on a broader scale. In years past, the CIJ acted as a high-level liaison with counterparts in DHS, the private bar, and other governmental and nongovernmental groups.

The regulations–specifically 8 C.F.R. 1003.9–describe the function of the CIJ. I kept a copy of that regulation on my wall. The regulations set forth the CIJ’s authority to issue operational instructions and policy, provide for training of the immigration judges and other staff, set priorities or time frames for the resolution of cases, and manage the docket of matters to be decided by the immigration judges.

Despite the regulation, under the current Administration, much of the CIJ’s, authority has been assumed by the Director’s Office or the newly created Office of Policy. Court operational instructions, court policy, the provision of training, setting priorities and time frames for case disposition, and many other matters are now being performed by the EOIR Director’s Office, with minimal input from the CIJ and OCIJ management. I do recognize the regulation setting forth the authority of the Director, as well as the fact that the CIJ’s authority is subject to the Director’s supervision. However, reliance on career employees and specifically the career senior executives (Senior Executive Service or SES) at the head of each EOIR component is significantly diminished now. I believe that is compromising the effectiveness of EOIR as a whole. Senior Executives have leadership skills and incredible institutional knowledge and experience that should bridge that gap between policy and operations. They should be a part of developing the direction of the agency and its structure to most effectively accomplish its functions, but are instead largely sidelined and relegated to much more perfunctory tasks. I worry that people with valuable skills will not be satisfied with decreased levels of responsibility, and will leave the agency. This will make it more difficult for EOIR to meet the challenges it is facing.

To answer the question as to how the CIJ position is different from the Director and General Counsel, the EOIR Director manages all the components of the Agency (BIA, OCIJ, Administration, and OGC) and reports to the Deputy Attorney General. The EOIR General Counsel provides legal and other advice to the EOIR component heads and the Director.

Asylumist: What were your goals and accomplishments as CIJ? Is there anything you wanted to do but could not get done?

Judge Keller: I was fortunate to serve as the CIJ at a time of many changes: Hiring an unprecedented number of IJs, finally beginning to implement electronic filing, and creating new ways to effectively complete cases. At the same time, we faced challenges, such as the ever-changing prioritization of certain types of cases, an increased focus on speed of adjudication, and the creation of the new Office of Policy within the agency, which was given far-reaching authority.

Amid these changes, one of my goals was to use my experience at the agency and my credibility to reassure judges and staff that, despite any changes, our mission of delivering fair hearings and fair decisions would remain unchanged. I always told new classes of judges that their primary responsibility was to conduct fair hearings and make fair decisions. Due process is what we do. And if we don’t get that right, we are not fulfilling the mission of the immigration court. I had the sense that my presence as CIJ gave people some level of security that we were holding on to that mission during all of the change.

Another goal was to hire more staff. I thought I would have more control over hiring and court management than I ultimately did. In terms of hiring, while we greatly increased the number of IJs, it is important to remember that IJs cannot function without support staff: Court administrators, legal assistants, clerks, interpreters, and others. The ratio is about 1-5, judges to support staff. Our hope was also to have one law clerk per IJ and we made some major progress in that regard. It might be wiser for EOIR to take a breather from hiring more judges and focus on hiring support staff, because that is imperative for the court to function. Overall, I was not able to prioritize staff hiring as I would have liked, nor was I confident that my office’s input had much impact on hiring decisions.

Aside from hiring many more judges, some of the positive changes we made while I was there included implementing shortened oral decisions–we do not need a 45-page decision in every case. Shorter decisions, where appropriate, are vital to increasing efficiency. We also encouraged more written decisions. It seems counterintuitive, but written decisions can actually be more efficient than oral decisions. If you have the written material available, as well as law clerks, and the administrative time to review the decision, written decisions save the time that would be spent delivering the oral decision and that time can be used for additional hearings. For this purpose, we greatly increased the accessibility of legal resources for both judges and staff through the development of a highly detailed and searchable user-friendly electronic database of caselaw, decisions, and other reference material.

Importantly, we were also working on ways to replace the standard scheduling based on Individual and Master Calendar Hearings. Instead, in a manner more like other courts, we would schedule cases according to the particular needs of the case, including creating, for example, a motions docket, a bond docket, a short-matters docket. Cases would be sent to certain dockets depending on what issues needed to be addressed, and then move through the process as appropriate from there. Different judges might work on one case, depending on what was needed. During the course of this process, many cases would resolve at the earliest possible point, and some would fall out–people leave the country, they obtain other relief, etc. But in the meantime, such cases would not have taken up a normally-allotted four hour Individual Calendar hearing block in the IJ’s schedule. We were looking to do at least three things: Secure a certain trial date at the start of proceedings, allot time judiciously to each matter, and reduce the time between hearings. If the immigration courts could successfully transition to this model, it would improve the timeliness and rate of completion of final decisions.

While I was CIJ, we also looked to see how other courts dealt with issues such as technology. For example, we went to see the electronic systems at the Fairfax County, Virginia court. That system is more advanced than EOIR’s, and it would, for example, allow a judge to give advisals that are simultaneously translated into different languages for different listeners. This would eliminate the time it takes to do individual advisals, without sacrificing the face-to-face time with the judge. We also investigated video remote interpreting, which is having the interpreter in the courtroom via video, so everyone can see and hear each other as if they were in the same place. IT infrastructure to properly support such initiatives is very expensive, but is obviously currently available and used by other court systems. Changes like improving the interpretation system and implementing e-filing and a user friendly electronic processing system would make a profound difference in how the courts operate.

I believe that some of these ideas are still being considered, but the problem is that there does not seem to be much patience for changes that are not a quick fix. I had hoped to move things further than we were able to, but we did make progress as I discussed.

As another example of a positive accomplishment, EOIR is now very effectively using more contractors for administrative support. This was started by Juan Osuna when he was Director of EOIR, and it has been highly successful. Because our growth has been so rapid, contract employees allow us to get top-notch people quickly, and gives us the flexibility to easily replace someone whose performance is not up to speed. Contractors are not a substitute for permanent employees, but can bridge the gap between a vacancy and a new hire. Once contractors have some experience, they can apply for permanent positions and by then, we have good knowledge of their skills and can hire experienced workers.

Finally, a major accomplishment was that I was the first female Chief Immigration Judge. Even though my experience was extensive, I still had to fight to get the job, including nine hours of interviews. At the time, I think I underestimated how much the workplace was still unaccustomed to women in particular positions. The emails I received after I left the job were astounding. Men and women alike wrote to tell me how much it meant to them to have a female CIJ.

Asylumist: How did things at EOIR change between the Obama Administration and the Trump Administration?

Judge Keller: Things now are unlike any time in the past. As I think we have been seeing throughout government during this Administration, the difference seems to be that there is now a fundamental distrust of people and organizations in the federal government. Over three decades, I have worked through a variety of administrations at all points on the political spectrum. Long-time federal employees are very accustomed to altering course when new administrations come in, whether or not the political parties change. Many employees and executives like me welcomed change as an opportunity to move their organizations forward and make the delivery of their services better. But if those in political power do not trust their subordinates and the functions of the agencies they run, it’s a very different and difficult scenario.

Some of the “small p” political pressure was happening by the end of the Obama Administration. For example, we saw this with children’s cases and the instruction we received from Justice Department leaders in political positions to prioritize those cases on our dockets. Still, in that instance, once the political goal was set, the best way to accomplish the goal, and even its ongoing feasibility, was largely left to senior staff in the agency with operational expertise to implement or to ultimately advise superiors that a different course of action might be needed. Now, very often both the political and the operational decisions down to the smallest details are dictated from above. For example, even my emails and communications to staff were edited from above. Aside from the very questionable advisability of having operational determinations made by persons with no operational expertise, this approach subjects the court process to claims that it is not neutrally deciding cases but instead deciding cases in the manner that political leaders would like.

Until recently, I had never really thought very hard about an Article I court for immigration cases. I thought that the line between politics and neutral adjudication was being walked. There was no major concern from my perspective about EOIR managers navigating that line. Now, the level of impact of political decisions is so extraordinary that I wonder whether we do need to remove the immigration courts from the Department of Justice. I’ve just started to seriously consider the validity of this idea and I need to do more research and thinking about it. The American Bar Association’s recommendations are very persuasive and of significant interest to me. Before, I would not have thought it necessary.

Of course, moving the Immigration Courts to Article I status would not solve all our problems, but it could free us from some of the questions that have been raised over the years about politicized hiring, how cases are being politically prioritized, and whether that is appropriate for a court.

Another large change came in our ability to talk to those we serve. To best function, you have to talk to stakeholders on both sides: The Department of Homeland Security (DHS) and the private bar/respondents. This used to be standard procedure in past administrations, and it was done at both the upper and ground levels. Recently, such conversations were much more limited, and took place primarily at higher levels, often above my position and that of my Deputies. This change was touted as a way to streamline the Agency’s messaging system, but cutting off other forms of communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.

We previously had a great relationship with the American Immigration Lawyers Association (“AILA”). For example, when I was working on conduct and professionalism for Immigration Judges, AILA was a great help. At the time, AILA’s message was the same as our message (poor conduct of adjudicators and representatives should be addressed), and we successfully partnered for a long time. Similarly, the CIJ previously had regular interactions with DHS’s Principal Legal Advisor and others in the DHS management chain, but that is no longer the case. Another change to the management structure that I believe was ill-advised was abolishing the “portfolio” ACIJs who bore targeted responsibility for several very important subjects to immigration court management: Judge conduct and professionalism, training, and vulnerable populations. In my experience, having officials whose specialized function was to oversee programs in these areas increased the integrity, accessibility, credibility, and efficiency of the court.

Asylumist: While you were CIJ, EOIR implemented quotas. IJs are now supposed to complete 700 cases per year. Can you comment on this?

Judge Keller: Many different court systems have performance goals and I am generally in favor of those. But the question is, How do you establish and implement them? Are you consulting the managers and IJs about it? How do you come up with the goals? Should they be uniform across the courts? The current requirements were not developed by me or my management team. Numeric expectations alone are not going to fix things. Timeliness is more important in my view than specific numbers. Moreover, the way that the emphasis is being placed on these numbers now sends the wrong message to both the parties and our judges and court staff. Also, court staff and stakeholders would more likely buy into such a change if they understood how the goal was developed, and why. My experience is that IJs are generally over-achievers and they want to do well and will meet or exceed any goals you set. In my view, completing 700 cases may be an appropriate expectation for some judges and dockets, and might be too high or even too low for others. Courts, dockets, and cases are vastly different from the southern border to the Pacific Northwest to the bigger cities, so I’m not sure about a one-size-fits-all approach.

Asylumist: What about the Migrant Protection Protocols (“MPP”), also known as the Remain in Mexico policy. Can you comment on the effectiveness or efficacy of this program?

Judge Keller: The MPP began right before I left EOIR. In the MPP, as with all dockets, the role of the immigration court is simply to hear and resolve the cases that DHS files, but there were and still are, many legal and procedural concerns about the program. For example, what is the status of a person when they come across the border for their hearing, are they detained or not? Also, there were significant practical considerations. If you bring people across the border and plan to use trailers or tents for hearings, you need lines for IT equipment, air conditioning, water, bathrooms, etc. All that needs to be taken care of well in advance and is a huge undertaking. My impression of the MPP was that it was a political policy decision, which, even if an appropriate DHS exercise, is evidence of how asking the court to prioritize political desires impacts the overall efficiency of the court. The resources it required us to commit in terms of planning, and the resources it took away from the remaining existing caseload will likely contribute to further delay in other cases.

Asylumist: According to press reports, you and two other senior EOIR officials–all three of you women–were forced out in June 2019. What happened? Why did you leave?

Judge Keller: Unless there is something I don’t know about my two colleagues, none of us was forced out. I was not. We could have stayed in our same roles if we had chosen to do so. At the same time, I would not necessarily say that our departures were completely coincidental. I do know that the nature of our jobs had changed considerably.

For me, the previous level of responsibility was no longer there, and I did not have the latitude to lead the OCIJ workforce. My experience and management skills were not being used and I was mostly implementing directives. Any time three experienced, high-level executives depart an agency, there should be cause for concern. The fact that we were all women certainly raises a question, but EOIR has always been pretty progressive in that regard. Nevertheless, appropriate equal respect for women in the workplace is something that unfortunately still needs attention everywhere.

Leaving EOIR was a hard decision for me to make, and I think it was a big loss for EOIR that all three of us chose to exit.

The politicization of the court was also a concern for me. Historically, the Director of EOIR was always a career SES appointee, not a political SES. I viewed that as critically important, symbolically and practically, for a court system, especially one like the immigration court within the Executive Branch. Director James McHenry is in a career Senior Executive position. However, his path to the position was through the new Administration, which had detailed him from his position as a relatively new Administrative Law Judge to Main DOJ as a Deputy Assistant Attorney General for a while before he became the Director. It appears that the large majority of his career otherwise was at DHS in non-managerial positions.

Successfully overseeing or managing an organization the size of EOIR with all of its challenges today would be difficult even for a seasoned executive with a lot of management experience.

The question at this time for EOIR is, How does your mission of fair adjudication of immigration cases fit within the broader immigration goals of the government? It takes deft and nuanced management to ensure the integrity of a court of independent decision-makers while maintaining responsiveness to political leaders. A good manager listens to people with expertise and is skilled at motivating others, getting the most from each employee, developing well-thought-out operational plans to reach policy goals, and even changing course if necessary. Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS. I didn’t think there was as much focus on improving how we heard cases, as there was on meeting numeric goals and adjusting to the priorities of the DHS.

Asylumist: The BIA recently added six new members. All are sitting IJs and all had lower than average asylum approval rates. Do you know how these IJs were selected? What was the process?

Judge Keller: This was stunning. I can’t imagine that the pool of applicants was such that only IJs would be hired, including two from the same city. I think IJs are generally eminently qualified to be Board Members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that. At both the courts and the BIA, we used to get applicants for judge positions from academia, the private sector, BIA, and other governmental entities. More recently, we also had experienced judges and adjudicators from various other administrative systems, the military, and state and local courts applying to be IJs. I find these recent BIA hires to be very unusual.

I do not know the process for selection, but suspect that Board Chairman David Neal* had minimal input into these hires. I find this scenario very odd.

Note: Since this interview took place, the Chairman of the BIA, David Neal, left his position and retired from the federal government. Before serving as Chairman of the BIA, David Neal held many other leadership positions at EOIR over many years, including the Vice-Chairman of the BIA and Chief Immigration Judge.

Asylumist: EOIR has made some moves to decertify the IJ union. Do you know why? What do you think about this?

Judge Keller: This happened after I left, but of course, it is easier to run an organization without people questioning you. Good managers recognize that you want opposing viewpoints. Maybe I am biased because I was a union officer, but I was also a manager longer than I was a union leader, and I’ve seen both sides. When I first learned that attorneys and judges were unionized, I was surprised, but I have seen the value of that. As a manager, the union is a great source of information. There are inherent conflicts between management and any union, but the union often has goals similar to those of management. The relationship between a union and management must be carefully developed, managed, and maintained. In the end, I felt it was worth the extra effort.

Now, I think management is more comfortable without public questions. I think decertifying is a mistake, particularly now when there are so many other changes that demand focus.

Asylumist: When he was Attorney General, Jeff Sessions gave a speech to EOIR where he claimed that most asylum cases were fake. This is also a line we frequently hear from the Trump Administration. What was your opinion of that speech?

Judge Keller: I think you may be referring to a press conference the Attorney General held at EOIR in October 2017. In a speech that day, the Attorney General said that the asylum system was “subject to rampant abuse and fraud.” That was disheartening. Fraud is not a factor in the large majority of cases. We know about fraud and we have been dealing with it probably since the inception of the immigration court. But it is not true that overwhelming numbers of asylum seekers are coming to immigration court trying to fraudulently obtain benefits. Whether the majority of their claims ultimately lack merit is a different question. But it is the very fact that we have a robust system to examine and decide asylum claims that makes our country a role model to others. I do not think statements like that made by the Attorney General are helpful to the court’s credibility. If IJs had that speech in mind in court, they would be labeled as biased, and bias is not a good thing for a judge or a court.

For the current Administration, I think there is an underlying skepticism about the extent to which the system is being manipulated. The process is indeed imperfect. But if you think that there are inappropriate “loopholes,” then we need to fix the law or the process. That is why comprehensive, or at least extensive, immigration reform has been discussed for so long. The Attorney General articulated some potential improvements he wanted to make, but also unfortunately focused in that speech on fraud and abuse, as if it was a problem greater than I believe it is.

When I would give my speech to new IJs, I would tell them that they would see the best and the worst of human nature in immigration court. As an IJ, you see persecutors and those who were persecuted; courageous individuals and liars. It is a huge responsibility. Therefore, you can’t go into court as an IJ and be thinking either that everyone is telling the truth, or that everyone is manipulating the process. You have to have an open, yet critical mind. It seems to me that Attorney General Sessions did not have a full appreciation for our particular role. This again brings us back to the idea of an Article I court, or some other solution to solidify the independence of immigration court adjudicators.

Asylumist: What do you think should be done about asylum-decision disparities? Does something need to be done?

Judge Keller: Yes. I think that asylum decision disparities should be evaluated by immigration court managers as they may be a sign of an underlying problem that may need to be addressed. However, I do not believe that they can or should be entirely eliminated.

If a judge is significantly out of line with his or her colleagues in the local court, it might be a red flag. Sometimes, simple things impact grant rates. For example, did the IJ miss some training in a particular area and is that affecting the grant rate? Is the judge assigned or does a court have a docket that by its nature (detained, criminal) will result in a higher or lower grant rate? Court managers should be alert to and manage those issues.

We’ve been looking at this issue for a long time. I remember talking about it with many EOIR leaders and judges over the last 10 years. But each case is different from the next and you don’t want decisions on asylum made according to mathematical formulas as if by computers. Decisions on such important human matters should be made by people who know the legal requirements, and can exercise sound judgment.

One way we thought about addressing seemingly significant disparities was temporarily assigning IJs with high or low grant rates to courts where the grant rates are different. Sometimes, the best way to evaluate your own opinions is to think through them with people who have different views. The hope was that judges would have the time and opportunity to reflect on their approach to asylum.

Once, former Director Osuna and I went to Chicago to visit the judges of the Seventh Circuit, which was at the time highly critical of our judges. We met with several of the Circuit Judges and talked about many things, including disparities in immigration court. We explained our approach to disparities, namely, addressing training needs, addressing any inappropriate conduct via discipline, and improving resources. One of the Circuit Judges mentioned that he was appreciative of our approach, and suspected that if anyone looked at it, there are probably similar disparities at the circuit court level too. As long as human beings are deciding immigration cases, there will always be some disparities. However, significant disparities should be evaluated and action taken only if the disparity is the result of something inappropriate, that is, something other than the proper exercise of independent legal judgment.

Asylumist: What is your hope for the future of EOIR?

Judge Keller: I hope EOIR can hold onto its core focus of hearing and deciding cases fairly and impartially. I also hope that the parties in the process know that we are listening to them. Parties in any court should feel that they’ve received a fair shake and a fair decision. They should understand the reasons why their cases were decided a certain way, and should not have to wait for years to get resolution. That is our reason for being – to deliver that service.

 

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

Sorry, MaryBeth, but for many of the reasons you so cogently point out, the “EOIR we once knew” is gone forever. You have accurately described the “maliciously incompetent” politicized mis-management that has put EOIR “at war” with its sole Due Process mission, with migrants, particularly targeting the most vulnerable asylum applicants, and with the courageous lawyers trying to represent them in an intentionally hostile environment.

 

The good news is that the New Due Process Army will eventually win this war, and that EOIR will be abolished and replaced by an independent court system focused on Due Process and incorporating the values of fairness, scholarship, timeliness, respect, and teamwork.

 

PWS

 

10-16-19

 

 

 

 

 

EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

EOIR SHAKEUP:  Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019.  The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. 

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ. 

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values. 

“A new and dark era as Immigration Judges,” Says Judge A. Ashley Tabaddor, NAIJ President!

Dear Colleagues,

October 1st marked a new and dark era as Immigration Judges.  The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges).   NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle.  However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence.  Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program.  We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate.  The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process.  We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h.  We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts.  Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge.  So your continued feedback to NAIJ is a critical part of this process.

Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times.  As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time.   “Due process” is the beginning and the end of the conversation.  Period. Full Stop.

 

Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h.  Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.

 

We also understand that many of you are seeking guidance on how to best navigate this new system.  We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines.  I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering.  So please mark your calendars, and plan on joining us for at least one of the sessions.

 

Wednesday, October 10th 8:00 a.m. PT, 9:00 a.m. MT, 10:00 a.m. CT, 11:00 a.m. ET

Wednesday, October 10th 9:00 a.m. PT, 10:00 a.m. MT, 11:00 a.m. CT, 12:00 p.m. ET

Wednesday, October 10th, 10:00 a.m. PT, 11:00 a.m. MT, noon CT, 1:00 p.m. ET

Thursday, October 11th, 11:00 a.m. PT, noon MT, 1:00 p.m. CT, 2:00 p.m. ET

Thursday, October 11th, noon PT, 1:00 p.m. MT, 2:00 p.m. CT, 3:00 p.m. ET

 

The call-in information for each of the scheduled sessions is as follows:   (605) 475-4001 & passcode: 765103#

 

If you have any questions in advance that you would like for us to address during a meeting, feel free to forward it to my attention.

Thank you for all of your hard work.

 

Ashley

 

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

606 S. Olive St., 15th floor

www.naij-usa.org

213-534-4491 (direct office line)

BEST E-MAIL: ashleytabaddor@gmail.com

 

DISCLAIMER:  The author is the President of the National Association of Immigration Judges.  The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review.   The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

 

 

P.S. Please let your fellow NAIJ members know about these call-in session.  Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.

 

From: Ortiz-Ang, Susana (EOIR)
Sent: Monday, October 01, 2018 3:07 PM
To: All of Judges (EOIR) <All_of_Judges@EOIR.USDOJ.GOV>
Cc: Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>; Wilson, Donna L. (EOIR) <Donna.Wilson@EOIR.USDOJ.GOV>
Subject: New Performance Measures (On Behalf of Mary Beth Keller, Chief Immigration Judge)

 

Judges,

 

Please see the below and attached.

Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases.  You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.

I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

 

-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.

 

– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP.  The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019.   Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.

 

– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.

 

– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.

 

– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.

 

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

 

– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.

 

–  If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.

 

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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

So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.

There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”

Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!

The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case.  Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.

Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.

PWS

10-03-18

“OUR GANG” OF RETIRED US IMMIGRATION JUDGES CONDEMNS SESSIONS’S DESTRUCTION OF DUE PROCESS IN US IMMIGRATION COURTS – Calls On US Chief Immigration Judge Marybeth Keller & Her Colleagues To Stand Up To Sessions & Enforce Due Process Over Mindless “Haste Makes Waste” Quotas!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/statement-of-former-immigration-judges-and-bia-members-opposing-ij-quotas-oct-1-2018

INSIDE EOIR: FOIA RESPONSE DOCUMENTS THE BIZARRE FIXATION OF EOIR “MANAGEMENT” ON THE SCHEDULING OF CASTRO-TUM!

https://www.muckrock.com/foi/united-states-of-america-10/castro-tum-judicial-e-mails-55803/#file-212223

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

Clink the above link to enter the weird, wacky world of EOIR in the “Age of Sessions.” Let’s remember, there is nothing whatsoever remarkable about the Castro-Tum case except that Sessions chose, for some reason, to make it a “cause celeb.” Indeed, nobody even knows if this dude is still in the US, is alive, or even existed in the first place.

It’s pretty easy to understand why the taxpayers are being ripped off and our justice system is in tatters under Jeff Sessions as he squanders our money on his White Nationalist agenda! Think what America might be like under a real Attorney General, instead of “Gonzo Apocalypto.” The real problems, Russian interference in our elections, smuggling, police misconduct, human trafficking, voter suppression, hate crimes against vulnerable groups, rampant gun violence, government corruption, and violence against women go largely unaddressed while Sessions chases after non-problems to carry through on his “wing nut, extremist, far-right, immigration restrictionist” agenda that made him an “outlier” even within the GOP during his days in the Senate.

I look forward to the day when Jeff Sessions is no longer Attorney General of the US. It might be the only thing I have in common with Donald Trump.

PWS

08-24-18

MICA ROSENBERG @ REUTERS ANALYZES GONZO’S LATEST ATTACK ON CHILDREN (OR, IN “GONZOSPEAK” “UNMARRIED INDIVIDUALS UNDER THE AGE OF 18”) IN US IMMIGRATION COURT – No More “Mister Nice Guy” — Show ’em The Ugly Side Of America — These Kids Are Out To Get Us (Even If They Are So Scared, Confused, and Traumatized They Barely Know The Time Of Day)

https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-u-s-memo-weakens-guidelines-for-protecting-immigrant-children-in-court-idUSKBN1EH037

Mica reports:

“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.

An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”

The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.

The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.

‘WOLVES IN SHEEP CLOTHING’

Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.

Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”

The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.

While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.

Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”

Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”

Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”

“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”

In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.

The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.

Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”

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

Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”

After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.

The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.

Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.

At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.

I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?

Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.

To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.

So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solution for getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?

But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reforms necessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.

PWS

12-23-17

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus  on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

 

U.S. IMMIGRATON COURTS: She Must Have Had Writer’s Cramp — EOIR Swears In 14 New Judges Appointed By Former AG Lynch — Almost All From Government Backgrounds!

https://www.justice.gov/eoir/pr/executive-office-immigration-review-swears-14-immigration-judges

“FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the investiture of 14 new immigration judges. Chief Immigration Judge MaryBeth Keller presided over the investiture during a ceremony held April 7, 2017, at EOIR headquarters in Falls Church, Va.

After a thorough application process, former Attorney General Loretta E. Lynch appointed Justin F. Adams, Edward M. Barcus, Paula J. Donnolo, Lauren T. Farber, Paul M. Habich, Cara O. Knapp, Maria Lurye, Anthony E. Maingot, Sarah B. Mazzie, Matthew E. Morrissey, An Mai Nguyen, Sean D. Santen, Stuart A. Siegel, and Gwendylan E. Tregerman to their new positions.

“We are happy to welcome these 14 appointees to our growing immigration judge corps,” said Keller. “These new immigration judges will enhance the agency’s ability to process detained cases, our highest priority, while also strengthening the agency’s capacity to address its broader pending caseload.”

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First, congratulations to all of the new U.S. Immigration Judges. While these days, probably nobody at DOJ or EOIR will tell you, the “Vision” of the U.S. Immigration Court is: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Please don’t forget that, and always let fairness and due process be your guide and inspiration!

Read the new U.S. Immigration Judges’ bios in the full press release at the above link. Interestingly, EOIR seems to have stopped furnishing information on the total number of Immigration Judges on the bench. But, by my “rough count,” it’s around 319. Also, by my “rough count” that would leave around 55 existing judicial vacancies in the U.S. Immigration Courts.

While former AG Lynch had a flurry of last minute appointments, the record will reflect that under her leadership, the DOJ & EOIR did an exceptionally poor job of filling new positions and getting additional Immigration Judges on the bench. The last minute appointments and unfilled judicial positions were from a group of additional positions provided to DOJ/EOIR by Congress some time ago. After years of moaning and groaning about lack of judicial positions, the DOJ/EOIR system was unable to deal with success. To state the obvious: If they can’t fill the ones they have now, why give them more?

Also, without taking anything away from the new judges, this set of appointments continues a two-Administration “tradition” of largely excluding qualified individuals from private practice, academia, and NGOs from the Immigration Judiciary. Although they had ample chance to do so, both former Attorney General Eric Holder and Lynch failed to address, and in fact participated in, this patent unfairness which has a tendency to skew due process in the Immigration Court system at both the trial and appellate levels. Shame on them!

I’ll keep saying it:  We need an independent Article I U.S. Immigration Court that operates in much the same manner as the Article III Courts! There is simply no justification for the current sad state of the U.S. Immigration Court system where due process and professional court administration have needlessly deteriorated over Administrations of both parties. Both the public and the individuals who depend on the U.S. Immigration Courts for due process deserve better!

PWS

04/11/17

 

U.S. Immigration Courts: 12 New U.S. Immigration Judges Invested — Here Are Their Bios!

FOR IMMEDIATE RELEASE
Monday, February 6, 2017
Executive Office for Immigration Review Swears in 12 Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the investiture of 12 new immigration judges. Chief Immigration Judge MaryBeth Keller presided over the investiture during a ceremony held Feb. 3, 2017, in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse, in Washington, D.C.

After a thorough application process, Attorney General Loretta E. Lynch appointed Victoria L. Argumendo, Steven D. Caley, Ila C. Deiss, Delia I. Gonzalez, Deborah K. Goodwin, Stephanie E. Gorman, Richard A. Jamadar, Julie Nelson, Emmett D. Soper, Jem C. Sponzo, Arwen Ann Swink, and Veronica S. Villegas to their new positions.

“On Jan. 8, 2017, we welcomed these 12 appointees to our growing immigration judge corps,” said Keller. “With this investment, EOIR has for the first time in its history exceeded 300 immigration judges. The agency recognizes that we must continue hiring immigration judges in order to address the pending caseload.”

Biographical information follows.

Victoria L. Argumendo, Immigration Judge, San Francisco Immigration Court

Attorney General Loretta E. Lynch appointed Victoria L. Argumendo to begin hearings cases in February 2017. Judge Argumendo earned a Bachelor of Arts degree in 1995 from the University of Vermont and a Juris Doctor in 2000 from the Golden Gate University School of Law. From 2012 to January 2017, she was in private practice at Argumendo Garzon Law Group, in San Francisco. From 2010 through 2012, she was in private practice at Surowitz & Argumendo, in San Francisco. From 2002 through 2010, she was in private practice at the Law Office of Victoria L. Argumendo, in San Francisco. From 2001 through 2002, she was an associate attorney at the Law Offices of Walter R. Pineda, in Redwood City, Calif. From May 2001 to September 2001, she served as a contract attorney for the Law Office of Enrique Ramirez, in San Francisco. From February 2001 to May 2001, she served as a contract attorney for Minami, Lew & Tamaki. Judge Argumendo is a member of the State Bar of California.

Steven D. Caley, Immigration Judge, Aurora Immigration Court

Attorney General Loretta E. Lynch appointed Steven D. Caley to begin hearings cases in February 2017. Judge Caley earned a Bachelor of Arts degree in 1977 from Hanover College and a Juris Doctor in 1980 from the New York University School of Law. From 2012 to January 2017, he served as a senior attorney for GreenLaw, in Atlanta. From 2000 through 2012, he was a partner and senior associate for Weissman, Nowack, Curry & Wilco, in Atlanta. From 2005 through 2006, and previously from 1996 through 1999, he served as a special administrative law judge for the Office of State Administrative Hearings, in Atlanta. From 1998 through 2000, he served as regional director for Legal Aid Services of Oregon, in Portland, Ore. From 1990 through 1998, he served as director of litigation for the Atlanta Legal Aid Society Inc., in Atlanta. From 1980 through 1990, he served in various capacities for the Legal Services Corporation of Alabama, in Dotham, Ala., including as managing attorney, senior staff attorney, and staff attorney. From 2003 through 2007, he served on the faculty of the Georgia State University College of Law as an adjunct professor. Judge Caley is a member of the Alabama State Bar, Florida Bar, State Bar of Georgia, and Oregon State Bar.

Ila C. Deiss, Immigration Judge, San Francisco Immigration Court

Attorney General Loretta E. Lynch appointed Ila C. Deiss to begin hearing cases in February 2017. Judge Deiss earned Bachelor of Arts degrees in 1991 from the University of California at Davis, a Master of Public Administration in 1996 from the Robert F. Wagner Graduate School for Public Service, and a Juris Doctor in 1999 from the City University of New York School of Law. From 2005 to January 2017, she served as an assistant U.S. attorney for the U.S. Attorney’s Office, Northern District of California, Department of Justice (DOJ). From 2003 through 2005, she served as a staff attorney for the U. S. Court of Appeals for the Ninth Circuit, DOJ. From 2001 through 2002, she served as a senior court counsel for the Supreme Court of the Republic of Palau. From April 2001 to August 2001, she served as a judicial law clerk for the Honorable Richard M. Berman, U.S. District Court, Southern District of New York. From 1999 through 2001, she served as a judicial law clerk for the Staff Attorney’s Office, U.S. Court of Appeals for the Second Circuit, DOJ. Judge Deiss is a member of the Connecticut and New York state bars.

Delia I. Gonzalez, Immigration Judge, Harlingen Immigration Court

Attorney General Loretta E. Lynch appointed Delia I. Gonzalez to begin hearing cases in February 2017. Judge Gonzalez earned a Bachelor of Arts degree in 1993 from the University of Houston and a Juris Doctor in 2001 from the Texas Southern University Thurgood Marshall School of Law. From 2006 through 2016, she served as an assistant chief counsel for the Office of the Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security. From 2001 through 2006, she served as a trial attorney for the Antitrust Division, Department of Justice, entering on duty through the Attorney General’s Honors Program. Judge Gonzalez is a member of the State Bar of Texas.

Deborah K. Goodwin, Immigration Judge, Miami Immigration Court

Attorney General Loretta E. Lynch appointed Deborah K. Goodwin to begin hearings cases in February 2017. Judge Goodwin earned a Bachelor of Arts degree in 1986 from Wilson College and a Juris Doctor in 2000 from the State University of New York at Buffalo School of Law. From 2015 to January 2017, she served as an associate legal advisor for the District Court Litigation Division, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Washington, D.C. From 2007 through 2015, she served as an associate counsel for U.S. Citizenship and Immigration Services, DHS, in San Francisco. From 2002 through 2007, she served as an assistant chief counsel for ICE, DHS, in San Francisco. Judge Goodwin is a member of the Florida Bar.

Stephanie E. Gorman, Immigration Judge, Houston Immigration Court

Attorney General Loretta E. Lynch appointed Stephanie E. Gorman to begin hearing cases in February 2017. Judge Gorman earned a Bachelor of Science degree in 1996 from California State University Sacramento, a Juris Doctor in 2002 from the Thomas Jefferson School of Law, and a Master of Laws degree in 2005 from the University of San Diego School of Law. From 2014 to January 2017, she served as an attorney and legal instructor for the Office of the Chief Counsel, Customs and Border Protection, Department of Homeland Security (DHS). From 2008 through 2014, she served as an assistant chief counsel for the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, DHS. From 2009 through 2012, she also served as a special assistant U.S. attorney for the U.S. Attorney’s Office, Middle District of Florida, Department of Justice (DOJ), in Orlando, Fla. From 2007 through 2008, she served as a federal law clerk for the Honorable M. James Lorenz, U.S. District Court for the Ninth Circuit, Southern District of California, DOJ, in San Diego. From March 2007 to September 2007, she served as a federal law clerk for the Honorable Roger T. Benitez, U.S. District Court for the Ninth Circuit, Southern District of California, in San Diego. From 2006 through 2007, she served as an assistant state attorney for the Twelfth Judicial Circuit, in Sarasota, Fla. From 2003 through 2006, she served in various capacities on the faculty of the Thomas Jefferson School of Law, including as visiting assistant professor of law and senior legal writing instructor and adjunct professor. From 2002 through 2004, she served as an associate attorney for the Law Office of Matthew P. Rocco, in Carlsbad, Fla. Judge Gorman is a member of the State Bar of California and the Florida Bar.

Richard A. Jamadar, Immigration Judge, Houston Immigration Court

Attorney General Loretta E. Lynch appointed Richard A. Jamadar to begin hearing cases in February 2017. Judge Jamadar earned a Bachelor of Laws degree in 1987 from the University of the West Indies Faculty of Law and a Juris Doctor in 1996 from the Washington University School of Law. From 2004 to January 2017, he served as an assistant chief counsel for the Office of the Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security, in Orlando, Fla. During this time, from 2011 through 2013, he served as a special assistant U.S. attorney for the U.S. Attorney’s Office, Middle District of Florida, Department of Justice, in Orlando, Fla. From 2003 through 2004, he served as a senior attorney for the Department of Children and Families, Tenth Judicial Circuit, in Bartow, Fla. From 1999 through 2002, he served as an assistant state attorney for the State Attorney’s Office, Ninth Judicial Circuit, in Orlando, Fla. From 1996 through 1998, he served as an associate attorney for Polatsek and Scalfani, in Fort Lauderdale, Fla. Judge Jamadar is a member of the Florida Bar.

Julie Nelson, Immigration Judge, San Francisco Immigration Court

Attorney General Loretta E. Lynch appointed Julie Nelson to begin hearing cases in February 2017. Judge Nelson earned a Bachelor of Arts degree in 2003 from Biola University and a Juris Doctor in 2006 from California Western School of Law. From December 2014 to January 2017, and previously from 2009 through May 2014, she served as an assistant chief counsel for the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security. From June 2014 to November 2014, she served as a law clerk for the Honorable Steven P. Logan, U.S. District Court for the District of Arizona, Department of Justice (DOJ). From 2008 through 2009, she served as an attorney advisor for the Los Angeles Immigration Court, Executive Office for Immigration Review (EOIR), DOJ. From 2007 through 2008, she served as a judicial law clerk for the San Diego Immigration Court, EOIR, DOJ, entering on duty through the Attorney General’s Honors Program. From 2007 through 2009, she served on the faculty of Biola University as an adjunct professor. Judge Nelson is a member of State Bar of California.

Emmett D. Soper, Immigration Judge, Arlington Immigration Court

Attorney General Loretta E. Lynch appointed Emmett D. Soper to begin hearing cases in February 2017. Judge Soper earned a Bachelor of Arts degree in 1998 from Carleton College and a Juris Doctor in 2005 from the University of Oregon School of Law. From 2012 to January 2017, he served as an associate general counsel for the Office of the General Counsel, Executive Office for Immigration Review (EOIR), Department of Justice (DOJ), in Falls Church, Va. From 2010 through 2012, he served as an attorney advisor for the Office of Legal Policy, DOJ, in Washington, D.C. From 2006 through 2010, he served as an attorney advisor for the Office of the Chief Immigration Judge, EOIR, DOJ, in Falls Church, Va. From 2005 through 2006, he served as a judicial law clerk for the Buffalo Immigration Court, EOIR, DOJ. Judge Soper is a member of the Oregon State Bar.

Jem C. Sponzo, Immigration Judge, New York City Immigration Court

Attorney General Loretta E. Lynch appointed Jem C. Sponzo to begin hearings cases in February 2017. Judge Sponzo earned a Bachelor of Arts degree in 2003 from Hamilton College and a Juris Doctor in 2006 from the University of Connecticut School of Law. From 2007 to January 2017, she served as a trial attorney for the Civil Division, Office of Immigration Litigation, Department of Justice (DOJ), in Washington, D.C. From January 2015 to July 2015, she also served as a clearance counsel for the Office of Presidential Personnel, White House. From 2006 through 2007, she served as a judicial law clerk for the New York City Immigration Court, Executive Office for Immigration Review, DOJ, entering on duty through the Attorney General’s Honors Program. Judge Sponzo is a member of the New York State Bar.

Arwen Ann Swink, Immigration Judge, San Francisco Immigration Court

Attorney General Loretta E. Lynch appointed Arwen Ann Swink to begin hearing cases in February 2017. Judge Swink earned a Bachelor of Arts degree in 2002 from California State University San Marcos and a Juris Doctor in 2006 from the University of California Hastings College Of Law. Prior to this post, she served as a staff attorney in the motions unit of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, beginning in 2010. From 2006 through 2010, she served as an associate attorney for the Law Office of Robert B. Jobe, in San Francisco. Judge Swink is a member of the State Bar of California.

Veronica S. Villegas, Immigration Judge, Los Angeles Immigration Court

Attorney General Loretta E. Lynch appointed Veronica S. Villegas to begin hearing cases in February 2017. Judge Villegas earned a Bachelor of Arts degree in 1996 from California State University Fullerton and a Juris Doctor in 1999 from the Loyola Law School. From 2012 to January 2017, and previously from 2004 through 2005, she was in private practice at the Law Office of Veronica S. Villegas, in West Covina, Calif. From 2005 through 2012, she was a partner at Hill, Piibe & Villegas, in West Covina, Calif. From 2003 through 2004, she served as an assistant chief counsel for the Office of the Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security. From 1999 through 2003, she served as an assistant district counsel for the former Office of the District Counsel, Immigration and Naturalization Service, Department of Justice. Judge Villegas is a member of the State Bar of California.

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PWS

02/07/17

AP (Via Washington Times): More Coverage Of “Keller Memo” Eliminating “Rocket Dockets” In Immigration Court — Let Me Know If You Have Seen Changes In Your Local U.S. Immigration Court!

http://www.washingtontimes.com/news/2017/feb/1/immigration-courts-to-focus-on-detainees-not-kids-/?utm_source=RSS_Feed&utm_medium=RSS

ALICIA CALDWELL and AMY TAXIN – Associated Press reporting:

“The order to refocus the system’s priorities comes just days after Trump signed an executive order directing immigration agents to focus enforcement efforts on far more immigrants living in the country illegally, including anyone arrested on a criminal charge or with a criminal history.

A second order directed Homeland Security officials to detain immigrants caught crossing the border illegally and hold them until they can be deported or a judge rules on their fate.

“He’s going to keep everybody detained,” said Annaluisa Padilla, an immigration attorney in California. “There is nothing about speeding here or having people have due process in court.”

Trump’s call to detain more border crossers comes with a need for more jail space. The government has enough money to jail 34,000 people at any given time, though thousands more people have been held in recent months.

The government is looking for more jail beds, acting Immigration and Customs Enforcement Director Thomas Homan said Tuesday.

A message left for the Department of Homeland Security on Wednesday was not immediately returned.

Padilla said she worries the change means unaccompanied children with strong cases might get stuck in the backlog.

Immigration attorney Meeth Soni said she believed immigration authorities want the court to move quicker on detention cases to free up more jail space.

“In anticipation of more increased detention, and those proceedings, they’re going to have to basically make that a priority for the court,” said Soni, an attorney at the Immigrant Defenders Law Center in Los Angeles.”

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Please send me a comment if you have noticed that the “Keller Memo” has affected your local U.S. Immigration Court.

Also, seems to me that attorneys for children and families can’t have it both ways.  Ever since the beginning of the “rocket docket” they have been complaining about its adverse effect on recently arrived families and children.  Finally, Chief Judge Keller (who was recently appointed and not involved in the former Attorney General’s ill-advised decision to institute “rocket dockets” back in 2014) has been able to eliminate the “rocket docket.”  Barring very unusual circumstances, attorneys representing the “former priority cases” will just have to get in line with everyone else who has been waiting. While given the length of the wait in some Immigration Courts that’s certainly not ideal; but, it does seem fair under the circumstances.

PWS

02/03/17

 

U.S. Immigration Court: The End Of The Ill-Advised “Rocket Docket” — “Smart Leadership” By Chief U.S. Immigration Judge MaryBeth Keller Helps Restore Due Process, Equity, And Order To Immigration Court’s Daunting Docket — A “Breath Of Fresh Air” That Should Help New Administration And Individuals Who Depend On The Immigration Courts For Justice!

Trump’s Admin Ends Child Rocket Docket

Read Chief U.S. Immigration Judge MaryBeth Keller’s memorandum dated January 31, 2017, to all U.S. Immigration Judges at the link. Many thanks to Pilar Marrero over at impremedia.com for forwarding this to me.

This memorandum effectively ends the Immigration Court’s so-called “rocket docket” for recently arrived children, women, and families from the Northern Triangle of Central America, and returns the Immigration Court to a rational “single priority” for various types of detained cases.

Additionally, this returns control of Immigration Court dockets to the local U.S. Immigration Judges who are in the best position to determine how to fairly reorganize their dockets to achieve due process, fairness, and maximum efficiency. Chief Judge Keller also emphasizes that even priority cases must be scheduled, heard, and decided in accordance with due process — the overriding mission of the Immigration Courts.

This should be good news for overwhelmed pro bono organizations which have been valiantly attempting to get all of the former “priority” cases representation for Individual Hearings, most involving applications for asylum and other potentially complicated forms of protection. It should now be possible for Court Administrators and Immigration Judges to set cases in a manner that better matches the available pool of pro bono attorneys. For example, under the former system of priorities, Court Administrators were forced to set expedited Master Calendar hearings even though they knew that the local bar was already completely occupied and could not reasonably be expected to take on additional “fast track” cases.

It should also be good news for parties with long-pending cases ready for trial that were sent to the “end of the line,” often years in the future, to accommodate newer cases that actually were not yet “ready for prime time.”  The ill-advised priorities imposed by the Obama Administration have helped push the Immigration Court backlog to record heights — more than 530,000 cases and still growing. At the same time, the past priorities impaired fairness and due process at both ends of the docket.

What is not clear to me, from my “informed outsider” vantage point, is whether this policy change is driven by the Trump Administration or is something that was “in the pipeline” under the Obama Administration and has just surfaced now.  Normally, EOIR would not take such a bold move without the “go ahead” from the new Administration. If so, this would be a sensible, practical action by the Trump Administration. With increased enforcement and detention in the offing, “de-prioritizing” non-detained cases and returning control of the dockets to local Immigration Judges is most likely to set the stage for fair, timely consideration of cases, both detained and non-detained, instituted by the new Administration.  Importantly, by allowing Immigration Judges across the country to control their dockets, rather than having them manipulated by Washington, the Administration would be recognizing the advantages of having important administrative decisions made by those who are “on the scene” and have to live with the results.

By no means will this solve all of the many problems facing the Immigration Court.  But, it’s a promising development.

PWS

02/02/17