"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
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Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
Ethics Prohibited Beyond This Point! “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” CREATIVE COMMONS.
Documents seized from Donald Trump’s Florida home (credit: Department of Justice)
Sometimes we write a lot of words on Steady. Today will be an exception. Because for all that there is to say, for all that needs to be said, for all that an accounting for history requires we say, the general sentiments are quite simple:
They knew. They all knew.
It was clear to anyone who had an ounce of appreciation for what the job of the presidency entails, to anyone who respected the constitutional order of our government, to anyone who worried about the health and safety of this nation, to anyone with a moral compass, to anyone who prizes the common sense of purpose that great leaders can summon, that Donald J. Trump had no business anywhere near the presidency.
Now, as he melts down in the face of a serious criminal investigation, as we see pictures of how he stored classified material and his utter disregard for our nation’s most sensitive secrets, as we are left to wonder what he was up to and what damage was done, we should recognize that we would not be where we are today without his enablers, apologists, and hangers-on.
They heralded his outrageousness in a chorus of sycophancy.
They feted his vileness.
They viciously attacked those who pointed out the obvious, that Trump was mentally, emotionally, intellectually, morally, and constitutionally unfit for his office.
And who are they? They are the Republican politicians, the so-called serious ones who expressed their concerns in private even as they used Trump to achieve their desired tax cuts and judges. They are the members of his administration — senior and junior — who jockeyed to maximize their career benefit at the expense of doing the necessary work for the American people. They are the lawyers who twisted themselves into pretzels to try to legalize his inherent lawlessness. They are the media personalities who saw Trump as a printing press for their accrual of wealth and power. They are the capitalists who put corporate earnings ahead of the well-being of the nation.
While Trump’s voters were primed with a toxic stew of hatred, bigotry, and divisiveness, the small cabal playing the inside game didn’t bother with the MAGA hats. They were too busy trading access for favors. The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.
But make no mistake…
In their cowardice, they knew.
In their cynicism, they knew.
In their contempt, they knew.
In their rationalizations, they knew.
In their acquittals of his conduct, even for impeachment, they knew.
They knew when they could have stopped him — before he became president, and once he was president.
But they didn’t stop him. And with their inaction, they encouraged him.
As the Trump bubble begins to pop, all these people who knew what he was all along will likely scurry like cockroaches when the lights go on. They will make all sorts of excuses for their complicity. They will gaslight, lie, and try to rewrite history. You can already see it in many of their so-called tell-all books. Except what they are telling is only the story they want people to hear. It is not the truth.
The truth is that they don’t dare say what we all know. They knew.
Note: If you are not already a subscriber to our Steady newsletter, please consider doing so. And we always appreciate you sharing our content with others and leaving your thoughts in the comments.
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Throughout history, despots and would-be despots have surrounded themselves with motley crews of sycophants, toadies, and retainers. Trump has excelled at it!
Judge Amiena Khan, President National Association of Immigration Judges (NAIJ)
June 7, 2021
The Honorable Merrick Garland Attorney General
U.S. Department of Justice Washington, DC 20500
RE: Department of Justice Should Support the National Association of Immigration Judges and Withdraw the Petition to Decertify its Union
Dear Attorney General Garland,
We, the undersigned unions, organizations, immigration law professors and scholars, and other immigration court stakeholders call your attention to the urgent need to preserve and protect the National Association of Immigration Judges (NAIJ) and support collective bargaining by Department of Justice (DOJ) career civil servants. We are heartened by President Biden’s announcements on January 22, 2021, that both overturned his predecessor’s policies limiting employee rights to collectively bargain and also implement a wide-ranging policy to protect, empower, and rebuild the career federal workforce. President Biden’s announcements specifically encourage union organizing and collective bargaining.1
After four relentless years of union-busting, decisive leadership is needed to refortify the federal workforce. NAIJ and its 500+ bargaining unit members—immigration judges who are DOJ attorney employees—are in need of protection right now! NAIJ has been the collective bargaining representative for immigration judges since 1979. Yet, in 2019, the Trump administration filed a petition to strip immigration judges of their statutory right to be represented by a union and decertify NAIJ.
The Trump administration targeted NAIJ in retaliation for NAIJ’s criticism of both the unreasonable working conditions that DOJ managers imposed on its members and the sweeping curtailment of due process rights in immigration court.
While the decertification attempt was initially and thoroughly rejected in a decision by a career employee of the Federal Labor Relations Authority (FLRA), the decision was abruptly reversed
1 Executive Order 14003, on Protecting the Federal Workforce. 1
in a politically-motivated decision by the FLRA. That FLRA decision ignored the detailed fact-finding of the career employee and reversed long-standing FLRA precedent that 20 years earlier had found that immigration judges were not in a position to influence agency policy.
The FLRA decision is devoid of any reasoned analysis and creates an extremely dangerous precedent for professional workers throughout the federal government. Future administrations could wield this decision like a sword to preclude other professional employees such as physicians, scientists, engineers, and others from unionizing. Indeed, this ill-conceived anti-union precedent could have devastating repercussions for decades to come.
At this moment, a motion to reconsider is currently pending at the FLRA, and we call on the DOJ to withdraw its opposition to that motion, withdraw its decertification petition, and take all steps to restore collective bargaining rights for NAIJ members. President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union so that it can continue to represent its members in support of fair working conditions. Doing so will be a service to Immigration Court stakeholders and the public at large.
We seek your immediate review and leadership in this matter. Sincerely,
Amiena Khan
Amiena Khan, President
National Association of Immigration Judges
Unions: AFL-CIO
American Federation of Government Employees (AFGE), AFL-CIO American Federation of Government Employees (AFGE), Local 511
American Federation of Government Employees (AFGE), Local 3525
American Federation of State, County & Municipal Employees American Federation of Teachers
Asian Pacific American Labor Alliance, AFL-CIO
Association of Flight Attendants-CWA
2
Communications Workers of America (CWA)
Department for Professional Employees, AFL-CIO
Federal Education Association
International Federation of Professional and Technical Engineers (IFPTE) International Union of Painters and Allied Trades
Labor Council for Latin American Advancement National Association of Government Employees National Education Association
National Federation of Federal Employees National Nurses United
National Treasury Employees Union
National Weather Service Employees Organization Patent Office Professional Association
Service Employees International Union (SEIU) The International Brotherhood of Teamsters UNITE HERE
United Mine Workers of America
United Power Trades Organization
Organizations:
African Services Committee
Alliance for Justice
American Immigration Lawyers Association AsylumWorks
3
Bellevue Program for Survivors of Torture Brooklyn Law School Safe Harbor Project Catholic Labor Network
Catholic Legal Services, Archdiocese of Miami Catholic Legal Immigration Network, Inc. Center for Gender & Refugee Studies
Columbia Law School Immigrants’ Rights Clinic Disciples Immigration Legal Counsel
Florence Immigrant & Refugee Rights Project Immigrant Defenders Law Group
The Legal Aid Society
Migrant Center for Human Rights
Minnesota Interfaith Coalition on Immigration Mississippi Center for Justice
National Immigration Law Center
National Network for Immigrant & Refugee Rights The Right to Immigration Institute
Round Table of Former Immigration Judges
Law Professors and Scholars with Institutional Affiliation for Identification Purposes only:
Sabi Ardalan
Clinical Professor of Law
Harvard Immigration and Refugee Clinical Program Harvard Law School*
Roxana C. Bacon
4
Adjunct Professor of Law Arizona State University* University of Arizona* University of Miami*
David Baluarte
Associate Clinical Professor of Law Washington & Lee University School of Law*
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law*
Lenni B. Benson
Distinguished Chair of Immigration and Human Rights Law New York Law School*
Matthew Boaz
Professor
Washington & Lee School of Law*
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law Brooklyn Law School*
Rose Cuison-Villazor
Vice Dean and Professor of Law Rutgers Law School*
Ingrid Eagly
Professor of Law
University of California Los Angeles School of Law*
Lauren Gilbert
Professor
St. Thomas University College of Law*
Lindsay M. Harris
Associate Professor & Director, Immigration & Human Rights Clinic University of the District of Columbia, David A. Clarke School of Law*
Katie Herbert Meyer
Associate Professor of Practice and Director of the Immigration Law Clinic Washington University*
Geoffrey Hoffman
Clinical Professor and Immigration Clinic Director
5
University of Houston Law Center*
Alan Hyde
Distinguished Professor of Law and Sidney Reitman Scholar Rutgers Law School*
Erin Jacobsen
Professor and Director at Vermont Law School’s South Royalton Legal Clinic Vermont Immigrant Assistance
Vermont Law School*
Hiroko Kusuda
Clinic Professor and Director of Immigration Law Section
Loyola University New Orleans College of Law*
Stuart H. Smith Law Clinic and Center for Center for Social Justice
Vanessa Merton
Professor of Law
Immigration Justice Clinic Elizabeth Haub School of Law*
Karen Musalo
Professor and Founding Director, Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic
U.C. Hastings College of the Law*
Lori A. Nessel
Professor
Seton Hall University School of Law*
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Law Center*
Maria Mercedes Pabon Professor of Law
Loyola University New Orleans*
Carrie Rosenbaum
Lecturer in Legal Studies University of California, Berkeley*
Faiza Sayed
Visiting Professor of Clinical Law and Co-Director Safe Harbor Clinic
6
Brooklyn Law School*
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law*
Elissa Steglich
Clinical Professor and Co-director Immigration Clinic University of Texas School of Law*
Mark E. Steiner
Professor of Law
South Texas College of Law Houston*
Enid Trucios-Haynes Brandeis School of Law University of Louisville*
Irene Scharf
Professor
Immigration Law Clinic University of Massachusetts*
Doug Smith
Lecturer in Legal Studies Brandeis University*
Paul Wickham Schmidt Immigrationcourtside.com
Erica B. Schommer
Clinical Professor of Law
St. Mary’s University School of Law*
Michael J. Wishnie
William O. Douglas Clinical Professor of Law Yale Law School*
*Institutional affiliation for identification purposes only
7
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FULL DISCLOSURE:I am a retired member of the NAIJ.
Thanks to my friend Judge Amiena Khan and the rest of her leadership group at the NAIJ for all they do to fight for due process for individuals in Immigration Court!
To date, Garland and his team have been busy defending Billy Barr’s and Trump’s corruption from legal accountability, appointing Barr’s hand-picked “judges” to their overtly non-progressive judiciary, attempting to intimidate the press (until the White House finally had to intervene), and carrying out pre-existing Stephen Miller inspired precedents and policies. Oh yeah, and engaging in their own mindless unilateral round of “Aimless Docket Reshuffling” (a/k/a yet another designed to fail “Dedicated Docket”) in Immigration Court while continuing to build on the pre-existing 1.3 million case backlog. They have also been occupied with ignoring every progressive and expert suggestion and NOT appointing progressives to leadership and judicial positions. Wow! That’s a very full plate (of unappetizing food)!
So, I’m not holding my breath for a favorable response to the latest request for the injection of some legality, common sense, and decency into EOIR. Nor am I expecting Biden and Harris to honor their commitment to Federal Employee Unions, after watching their performance to date on immigration and human rights. Additionally, given the continuing abysmal performance of EOIR and its ongoing waste and incompetence, I doubt whether they want any “internal critics” speaking truth to power.
So far, Garland is on course to be “Billy Barr, Jr.” While that might help Barr to avoid legal accountability for his corrupt administration of justice @ Justice, it’s not so good for progressives who would like to see (and once believed they would see) some “justice from Justice” particularly for racial minorities, women, children, asylum seekers, and other migrants.
They also would like to see at least minimally professional and respectful treatment of those appearing and representing individuals in Immigration Court. While Garland, Monaco, Gupta, and Clarke are all being paid comfortable “top of the line” USG salaries for ignoring long-overdue progressive reforms @ EOIR, many attorneys representing individuals in their “Star Chambers” are operating pro bono or low bono in their attempts to keep Garland’s failing and flailing system afloat.
Just more reasons why we need an independent Article I Immigration Court to deliver due process, racial, and gender justice to individuals, regardless of status.
Lowering The Barr by Randall Enos, Easton, CT Republished By License. Guess Garland forgot to flush!
Risch’s last-minute appointment at EOIR was particularly egregious, since he had no known Immigration Court experience. EOIR currently is in an existential crisis that threatens to topple the entire U.S. Justice System, with a highly politicized “judiciary” and an astounding, largely self-inflicted 1.3 million case backlog.
That backlog multiplied much faster than the additional Immigration Judges that Sessions and Barr used to “pack” the Immigration Courts with restrictionists and judges sympathetic to ICE enforcdement and often hostile to asylum seekers and their lawyers. As many experts have observed, the Trump era hires often had highly questionable judicial qualifications, many lacking any immigration law expertise or experience. Perhaps, that’s a reason why the backlog continued to grow exponentially even as Sessions and Barr tried gimmick after gimmick, a number of them blatantly illegal and enjoined by Federal Courts, to cut corners and “rev up” the “Trump Deportation Railroad @ EOIR.”
Obviously, throwing an unqualified political hack like Risch into this mess in a senior “management” position was just another example of the Trump Administration’s abuse of government resources and manipulation of personnel practices @ DOJ. It took some time for Judge Garland to get this one right. But, better late than never.
However encouraging the news of Risch’s departure might be, there is still much more “housecleaning” to be done by Garland at the EOIR Tower. That should start with BIA Chair David Wetmore, a Stephen Miller/Gene Hamilton crony with no positive reputation for scholarship or expertise in the immigration/human rights community and no known experience representing asylum seekers or other migrants in Immigration Court.
It’s little wonder that with “appellate judges” who have earned little respect in the legal community at large comprising the BIA, the system is a mess, turning out poor work product and elementary errors, “outed” by the Article IIIs on a regular basis.
The Outrageous Decision to Decertify the IJ’s Union
Our attention is understandably focused elsewhere right now. However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union. While this might seem to be a minor issue at the moment, it is not. At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.
The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago. It weathered a similar decertification effort in 2000. Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize. Under federal labor law, one is classified as a manager if their position “influences policy.” 20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion. In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy. The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”
In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novoreview, their findings of fact are now reviewed for clear error. Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy. So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification. At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision. As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.” Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.
The Regional Director dismissed the claim based on the above arguments and testimony. But there was always a sense that the administration had something up its sleeve. That “something” turned out to be two Trump appointees, FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott. They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them. The two stayed true to form in decertifying the NAIJ. The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion in the NAIJ’s case, which concluded with the following language:
This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”
By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.
First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach. Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards). As several leading scholars explained in an article in Slate: “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”
But of great importance is a point I raised last year in an article I wrote forLaw360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:
while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ. In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views. Such actions would constitute a troubling attempt by the executive branch to influence case outcomes. Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.
Just prior to the FLRA’s decision, an executive order creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views). By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order. To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.
While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant. First, the earlier decertification effort in 2000 occurred under a Democratic administration. Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration. Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.
The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term. It is therefore hoped that readers will amplify the news of the decision and all it means. It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision. And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct
There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration. FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent. But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.
Copyright 2020 Jeffrey S. Chase. All rights reserved. reprinted with permission.
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Thanks for speaking out so forcefully and articulately, my friend,
I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.
If Joe Biden is elected president, he promises to overturn President Trump’s aggression against federal employee unions, support regular pay raises for federal employees and protect their workplace rights.
Biden, the Democratic nominee, has pledged to upend Trump’s actions concerning federal labor organizations on Inauguration Day in January. Trump’s assaults were codified in three executive orders he issued in 2018. They systematically undermined the ability of unions to represent not only their members, but all employees in agency collective-bargaining units.
Saying Trump “has loosed a direct attack on our members’ union rights and dignity on the job,” the American Federation of Government Employees (AFGE) questionnaire to Biden outlines policies the largest federal union wants reversed.
“This includes purging lawful representational activity from government worksites and equipment, weaponizing the bargaining process to propose, and in some cases impose, one-sided contracts, attacking our statutory right to collect voluntary dues, crippling our ability to mediate disputes on duty time, and more,” says the questionnaire’s introduction. “Taken together, these attacks constitute more than just a threat to our members’ livelihoods, they threaten the survival of the merit-based civil service system on which our government is built.”
AFGE endorsed Biden last month. In two internal polls, AFGE said its members supported Biden over Trump by more than 30 points.
The first question asked Biden to commit to overturning the executive orders and other directives that weaken employee due process and collective bargaining rights “on your first day in office.” Biden agreed and said “the federal government should serve as a role model for employers to treat their workers fairly.”
“On my first day in office,” he added, “I will restore federal employees’ rights to organize and bargain collectively, restore their right to official time, and direct agencies to bargain with federal employee unions.” Official time allows union leaders to represent employees, including those who are not union members, in grievance procedures and matters involving issues such as workplace safety and productivity, while being paid by the government.
[If he gets a presidential Day 1, Biden has a nearly endless list of ways to spend it]
In addition to Biden’s answers, the Democratic Party Platform promises to “strengthen labor rights for the more than 20 million public-sector employees” at all levels by supporting legislation that would “provide a federal guarantee for public-sector employees to bargain for better pay and benefits and the working conditions they deserve.”
While Trump has been relentless in his federal union offensive, all was not copacetic when Biden served as Barack Obama’s vice president. Government workers vehemently opposed three federal pay freezes imposed under Obama, with congressional approval, during an era of budget tightening.
But the Obama-Biden administration did not seek to fundamentally undermine unions as Trump has done or diminish federal workers. Obama’s stated effort to “make government cool again” contrasts sharply with Trump’s “drain the swamp” attitude toward government. Trump did not respond to AFGE’s questionnaire.
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Read the complete article at the link.
Just another instance where Biden is going to have to separate himself from some misguided, occasionally weak-kneed and shortsighted, Obama-era policies and establish himself as his own man, with a decidedly more practical, aware, and progressive approach. And, as a long-time public servant himself (albeit an elected one) — whose career has in many ways been built and furthered by the skills, expertise, and contributions of civil servants in all branches of Government — I believe he is up to the task. Indeed, he might well be the best-qualified candidate in my lifetime to save and enhance our now reeling and crumbling civil service — one of the “crown jewels” of American democracy now under unrelenting assault from a thoroughly corrupt Trump and his GOP nihilist “wrecking crew.”
For example, look at how the cowardly and totally unethical “Billy the Bigot” Barr tried to “punish” Judge Ashley Tabaddor and the National Association of Immigration Judges (“NAIJ”)(disclosure: I am a proud retired member) for speaking “truth to power.” As the only ones authorized to speak out on behalf of Immigration Judges (regardless of membership in the NAIJ), Judge Tabaddor and other NAIJ officials exposed the massive corruption, gross mismanagement, improper politicization, and medically dangerous working conditions at EOIR! As a result, Billy tried to silence her and the NAIJ by filing a frivolous action to “decertify” the NAIJ based on bogus reasons, many rejected by the FLRA in the past. This abuse of Government resources and process by Billy has since been dismissed after hearing by a FLRA official, as previously reported in “Courtside.”
As a civil servant for more than 35 years, serving in Administrations of both parties, at levels from “worker bee” to “Senior Exec,” and a veteran of 21 years on both levels of the Immigration Bench (when it actually more resembled a “real court” than the ridiculous parody engineered by Gonzo Apocalypto and Billy the Bigot), I know what I’m speaking about.
Incidentally, I was one of the “founding brothers and sisters” of the BIA employees’ union in the 1970s, and then went on to battle that same union before the FLRA during my tenure as BIA Chair in the late 1990s. So, like many issues in immigration during my career, I understand both sides.
But, I never questioned the BIA union’s authority to speak for the staff. In most ways, it was a good “focal point” for getting important issues out in the open and resolving them, even if the process was occasionally contentious and frustrating. And, I’d have to admit to getting some good ideas on management improvements from union officials. So good, in fact, that I actually hired some of them to become staff managers at the BIA.
Over my career, I was involved in thousands of asylum and refugee cases, many of them successful. Many were fleeing countries with great progressive “paper constitutions” and sometimes even very “facially reasonable” statutory law. A number of these countries had even signed the U.N. Refugee Convention. What often made these countries “persecutors” as opposed to “protectors” was in the “execution” rather than the “black letter law.”
Two characteristics that many of these persecutors had in common were: 1) an authoritarian executive who controlled a corrupt civil service usually “on the take,” staffed with family members, tribe members, or “party regulars,” and personally loyal to the leader rather than the constitution and statutes; and 2) “courts” that were either instruments of the leader and his tribe or party or too feckless to stand up against executive tyranny.
Under Trump and his corrupt GOP cronies, the US is well on its way to this type of “banana republic” public service in all three branches. And, don’t thank that a healthy economy or a robust stock market are “proof” against tyranny. Today’s China, as well as Nazi Germany and Imperial Japan, are prime examples of how “economic success and power” do not necessarily equate with good government, equality, or lack of repression.
This November, vote like your life and the future of our democracy depend on it! Because they do!
Most of the nation’s 2.1 million federal employees will report to work Monday to tightly packed office cubicles and other workplaces where they serve the public, even as schools and colleges across the country have closed, businesses have sent their staffs home to work and governors have canceled public activities to limit the spread of the coronavirus.
Top U.S. health officials are urging Americans to limit close contact with others, but the federal government appears to be hunkering down to limit disruption, creating widespread anxiety for employees who fear they are putting themselves and their families at risk.
Sunday night, in response to mounting criticism, the Trump administration urged agencies in the Washington area to “offer maximum telework flexibilities” to employees who are eligible for remote work.
The guidance followed a recommendation from the acting White House budget director Friday that limited telework to the elderly, pregnant or those with health risks. But Sunday’s directive was not mandatory, and it left out most of the government. Just 15 percent of the federal workforce is in the D.C. area.
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Read the rest of the article at the link.
Remember, the same moron who eliminated the White House Pandemic Planning Unit (then lied about it to the nation) was just a few short weeks ago, as the pandemic was spreading worldwide, working on plans to limit or eliminate telework for Federal employees.
Many of us at the Arlington, Miami, and Charlotte Immigration Courts worked with Assistant Chief Counsel Marcia Gottesman over the years. In addition to being an outstanding professional, Marcia is a very dedicated single parent and an all around good person.
I recently learned that Marcia has developed serious health issues relating to heart disease that prevent her from working. She has been approved by ICE as a recipient for the donation of annual leave. Employees of other federal agencies can donate annual leave by using OPM Form 630-B.
All donations are completely anonymous so neither Marcia nor anyone else would know if someone donated leave, unless the donor were to say something. Thus, if someone at EOIR or any other agency were to donate leave, it is my understanding that would be no conflict of interest or even an appearance of bias or impropriety because the program is so anonymous. However, those outside DHS who do business with DHS should, of course, check with their Ethics Officer as I am not purporting to give legal or ethical advice.
Marcia has given me permission to make this information and request for assistance public on “Courtside.” While those of us who have left Government are no longer eligible to participate in leave donations, I hope that those readers who are still in Federal Service will consider Marcia’s humanitarian predicament.
For those who would like to communicate directly with Marcia, I have permission to release her contact information if you contact me through immigrationcourtside.com.
Regardless of whether you personally know Marcia, I hope that you will join me in thinking of her and her family during this challenging time.
Also, please feel free to share this information with others who know Marcia or might be in a position to assist her during her time of need.
Paul Begala, a Democratic strategist and CNN political commentator, was a political consultant for Bill Clinton’s presidential campaign in 1992 and was counselor to Clinton in the White House. He was a consultant to Priorities USA Action, which was a pro-Obama super PAC before it was a pro-Hillary Clinton super PAC. The opinions expressed in this commentary are his. View more opinion articles on CNN.
(CNN)President Donald Trump ran for office as a populist. He swore to fight for the “forgotten men and women,” a phrase he stole from FDR. But under his presidency, the middle class remains forgotten — hammered is more like it.
He sent a statement to Congress on Thursday saying we can’t afford to give our people a measly 2.1% bump because — are you ready for this? — “We must maintain efforts to put our nation on a fiscally sustainable course, and federal agency budgets cannot sustain such increases.”
Donald Trump is now worried about the debt. Are you kidding me? That’s like John Dillinger worrying about gun violence. Like Kim Kardashian worrying about being overexposed. Like Donald Trump worrying about spray-tanning and pathological lying.
President Trump championed a tax cut that spends $1.5 trillion on the forgotten corporate class. According to the nonpartisan Tax Policy Center, when the GOP tax bill is fully implemented, an astonishing 83% of its benefit will flow to the top 1%.
The President’s answer to the fiscal meltdown he is causing is not to ask those who’ve gotten the most to pay a little more. It’s to hurt the folks who are already serving us.
Sen. Mark Warner, a Democrat from Virginia, home to numerous federal workers, both in the D.C. area and the Norfolk naval region, called BS on Trump’s newfound fiscal prudence.
“Let’s be clear,” Warner wrote in a statement, “the President’s decision to cancel any pay increase for federal employees is not motivated by a sudden onset of fiscal responsibility. Today’s announcement has nothing to do with making government more cost-efficient — it’s just the latest attack in the Trump administration’s war on federal employees.”
The American Federation of Government Employees, the union that represents 700,000 of the 2 million federal workers, is vowing to fight. “Federal employees have had their pay and benefits cut by over $200 billion since 2011, and they are earning nearly 5% less today than they did at the start of the decade,” said AFGE President J. David Cox Sr. in a press release. He plans to push Congress to go over President Trump’s head and mandate the pay hike.
I hope they win. After all, you get what you pay for. Do you want your overworked air traffic controller to be missing meals and feeling faint? Do you want your Social Security check being handled by someone who’s holding three jobs? How about bridge inspectors and meat inspectors and the folks who fight forest fires? Or the scientists and doctors who are working around the clock to find cures for Alzheimer’s and cancer and HIV/AIDS?
Should they get a pay cut? Do you want the men and women who take on the drug cartels to be worried about making their rent payment? Really?
Worse still, President Trump wants to end what’s known as the “locality pay increase” — an annual adjustment to assist federal workers in parts of the country where the cost of living is high — like, say, the neighborhood Trump Tower is in. So TSA agents at LaGuardia Airport in New York, medical researchers in Atlanta, Drug Enforcement Administration agents in Los Angeles, homeland security professionals in D.C. — all will suffer.
Of course, while federal workers struggle, President Trump has made a fortune from government assistance. One analysis by The New York Times estimates Trump received $885 million in tax breaks from New York alone. And that doesn’t count the millions he’ll get from the tax cut he signed.
Meanwhile, the Secret Service agents who protect his life, the household staff that makes his bed, women and men who patrol the border he’s always yapping about — get shafted. Federal workers are patriotic; nearly one-third of them are veterans. Many of them do work that is difficult and dangerous — and almost all of them do work for which they are rarely thanked.
You might even say they’ve been forgotten.
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A deficit exploding $1.5 trillion for tax cuts for the upper 1% who don’t need them! But, in the middle of a booming economy, our Government can’t afford any money for its hard-working employees who are keeping the country running despite Trump’s “Clown Kakistocracy!” Come on man! It’s all a part of Trump’s war on the United States and his scheme to destroy our Government. Sadly, it’s consistent with various proposals from the “Bakuninist Wing” of the GOP over the years.
The solution for those who want our republic to continue: get out to the vote and throw the grifters and their fellow travelers out of office, starting this November!
Joe Davidson & Eric Yoder report in the Washington Post:
“The House budget proposal released Tuesday continues Republican efforts to cut federal employees’ compensation by making them pay more for retirement benefits.
Saying they seek “reforms to civil service pensions to put them on a better fiscal path,” the spending plan released by the House Budget Committee calls on staffers “to make greater contributions to their own defined benefit retirement plans.”
While the Republican’s “Plan for Fiscal Responsibility” did not provide details, it echoes previous proposals, including one offered by President Trump this year. He proposed increasing individual out-of-pocket payments toward retirement by 1 percentage point each year until they equal the government’s contribution for those in the Federal Employees Retirement System (FERS).
Over a six-year period, this would result in increased payments of about 6 percent. With no increase in benefits, that would equal a 6 percent drop in pay.
The budget “blueprint” assumes that the main panel overseeing federal employment in the House will take those steps to find the $32 billion in savings over 10 years that the blueprint would require.
The budget plan released by Committee Chairwoman Diane Black (R-Tenn.) also would end the “special retirement supplement,” which pays FERS employees “the equivalent of their Social Security benefit at an earlier age.”
“These plans put the ownership, flexibility, and portfolio risk on the employee as opposed to the employer,” the GOP document says. “Similarly, federal employees would have more control over their own retirement security under this option.”
Federal employee leaders sharply disagree.
“Slashing the pay and benefits of America’s civil servants while lining the pockets of the wealthiest of the wealthy is a shameful way to govern the country and is emblematic of everything that’s wrong with this horrible budget,” said J. David Cox Sr., president of the American Federation of Government Employees.”
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Read the complete article with charts at the above link.
These guys are shameless. The USG’s career civil service was once a “model program” that states, private employers, and even other countries sought to emulate. It produced an overall talented, motivated, honest, and effective workforce. And, the promise of an adequate, stable, and predictable retirement program underwritten by Uncle Sam was an important part of that success.
The GOP proposes to end all of that and turn the USG into just another lousy employer more interested in his or her own welfare than the well-being of the employees who are the heart and soul of the business. Shifting risk from the “big guys” like the Government, who can actually leverage investment and insurance markets and raise revenues when necessary, to individual employees who are much less well positioned to bear that risk is immoral, not to mention stupid. You get what you pay for. Reducing government employment to the lowest common denominator will essentially make us a third world country.
I dealt with this in Immigration Court all the time. The main difference between the U.S. and countries folks were fleeing (many of which had plenty of natural and human resources) was the lack of government structure and the inability or unwillingness of government to be an “honest broker” serving the needs of the people at large. In too many countries, corrupt governments are seen as primarily furthering the power and interests of those at the “top of the pile” and keeping everyone else in line.
We once had a President who sought to create a U.S. Government of “the best and the brightest.” Sadly, those days are long gone. Ultimately, all of us, and particularly those who come after us, will pay the price for the GOP’s endemic lack of vision and decency and their failure to honor and appreciate the massive contributions of career civil servants to to overall success of our nation.
“The deconstruction of the State Department is well underway.
I recently returned to Foggy Bottom for the first time since January 20 to attend the departure of a former colleague and career midlevel official—something that had sadly become routine. In my six years at State as a political appointee, under the Obama administration, I had gone to countless of these events. They usually followed a similar pattern: slightly awkward, but endearing formalities, a sense of melancholy at the loss of a valued teammate. But, in the end, a rather jovial celebration of a colleague’s work. These events usually petered out quickly, since there is work to do. At the State Department, the unspoken mantra is: The mission goes on, and no one is irreplaceable. But this event did not follow that pattern. It felt more like a funeral, not for the departing colleague, but for the dying organization they were leaving behind.
As I made the rounds and spoke with usually buttoned-up career officials, some who I knew well, some who I didn’t, from a cross section of offices covering various regions and functions, no one held back. To a person, I heard that the State Department was in “chaos,” “a disaster,” “terrible,” the leadership “totally incompetent.” This reflected what I had been hearing the past few months from friends still inside the department, but hearing it in rapid fire made my stomach churn. As I walked through the halls once stalked by diplomatic giants like Dean Acheson and James Baker, the deconstruction was literally visible. Furniture from now-closed offices crowded the hallways. Dropping in on one of my old offices, I expected to see a former colleague—a career senior foreign service officer—but was stunned to find out she had been abruptly forced into retirement and had departed the previous week. This office, once bustling, had just one person present, keeping on the lights.
This is how diplomacy dies. Not with a bang, but with a whimper. With empty offices on a midweek afternoon.
When Rex Tillerson was announced as secretary of state, there was a general feeling of excitement and relief in the department. After eight years of high-profile, jet-setting secretaries, the building was genuinely looking forward to having someone experienced in corporate management. Like all large, sprawling organizations, the State Department’s structure is in perpetual need of an organizational rethink. That was what was hoped for, but that is not what is happening. Tillerson is not reorganizing, he’s downsizing.
While the lack of senior political appointees has gotten a lot of attention, less attention has been paid to the hollowing out of the career workforce, who actually run the department day to day. Tillerson has canceled the incoming class of foreign service officers. This as if the Navy told all of its incoming Naval Academy officers they weren’t needed. Senior officers have been unceremoniously pushed out. Many saw the writing on the wall and just retired, and many others are now awaiting buyout offers. He has dismissed State’s equivalent of an officer reserve—retired FSOs, who are often called upon to fill State’s many short-term staffing gaps, have been sent home despite no one to replace them. Office managers are now told three people must depart before they can make one hire. And now Bloomberg reports that Tillerson is blocking all lateral transfers within the department, preventing staffers from moving to another office even if it has an opening. Managers can’t fill openings; employees feel trapped.
Despite all this, career foreign and civil service officers are all still working incredibly hard representing the United States internationally. They’re still doing us proud. But how do you manage multimillion-dollar programs with no people? Who do you send to international meetings and summits? Maybe, my former colleagues are discovering, you just can’t implement that program or show up to that meeting. Tillerson’s actions amount to a geostrategic own-goal, weakening America by preventing America from showing up.
State’s growing policy irrelevance and Tillerson’s total aversion to the experts in his midst is prompting the department’s rising stars to search for the exits. The private sector and the Pentagon are vacuuming them up. This is inflicting long-term damage to the viability of the American diplomacy—and things were already tough. State has been operating under an austerity budget for the past six years since the 2011 Budget Control Act. Therefore, when Tillerson cuts, he is largely cutting into bone, not fat. The next administration won’t simply be able to flip a switch and reverse the damage. It takes years to recruit and develop diplomatic talent. What Vietnam did to hollow out our military, Tillerson is doing to State.”
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While Trump and his cronies fabricate security threats from refugees, Muslims, and immigrants (and, I guess we can now add “grandparents” to that list), the greatest threat to our national security is the Trump Administration itself and its toxic mix of arrogance, incompetence, ignorance, and disdain for America and all it has stood for.
“President Trump issued an executive order Monday freezing federal hiring. The hiring freeze excludes national security employees.
A hiring freeze was included in the Trump presidential campaign’s “Contract with the American Voter.” It was the second of six measures “to clean up the corruption and special interest collusion in Washington, D.C.” and part of his “100-day action plan to Make America Great Again.”
The plan excludes the “military, public safety, and public health.”
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I imagine we will hear shortly from the DOJ/EOIR on how this affects hiring for the U.S. Immigration Courts. Stay tuned.
