"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.
Here’s the registration link: https://www.americanbar.org/events-cle/mtg/web/438313794/
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Thanks for forwarding this, Joan, and for your decades of leadership and work on Article I!
PWS
04-05-24
https://www.americanbar.org/news/abanews/aba-news-archives/2023/03/immigration-courts-independent/
ABA News
March 27, 2023 JUDICIAL INDEPENDENCE
Ex-judges: Immigration courts should be independent
Two retired immigration judges urged Congress to create an independent immigration court system, removing the courts from under the U.S. Justice Department, where they currently reside.
Panelists on a recent ABA webinar argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general.
The former judges made their call at a panel discussion March 17 — “Adjudicatory Independence: Are Immigration Judges a Warning or a Model?” — organized by the American Bar Association Judicial Division. They and other panelists argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general, who can overturn their decisions, fire them and create new immigration policies that they must follow.
Steven Morley, a retired immigration judge in Philadelphia, talked about a case he handled in 2018, called the Matter of Castro-Tum, which he considered a red flag for judicial independence.
The case involved an unaccompanied minor who illegally entered the United States, was detained by authorities, then released to relatives in the United States pending a hearing to force him to leave the county. Hearing notices were sent to the relatives’ address, but the boy did not appear. Finally, after four postponements, Morley administratively closed — or indefinitely suspended — the case, ruling that the Department of Homeland Security could not show it had a reliable address to notify the boy of his hearing.
At that point, U.S. Attorney General Jeff Sessions referred the case to himself and overturned the judge’s decision. Sessions ruled that immigration judges do not have the authority to administratively close cases as Morley did. The new policy made it harder for immigration judges across the country to indefinitely suspend cases. This caused an uproar among immigration judges and advocates.
Three years later, in 2021, Merrick Garland — a new attorney general in a new administration — overturned Sessions’ action.
Such actions undermine the independence of immigration judges, Morley said. “The flaws in the system allow this to happen, and we should always be concerned for the integrity of the court system.”
Morley said attorneys general under President Donald Trump referred immigration cases to themselves to overturn judges’ decisions 17 times in four years, a large number compared to previous administrations. “This is no way to run immigration policy, to have ping-ponging back and forth of policy, from one attorney general to another attorney general.”
Joan Churchill, a retired immigration judge in Northern Virginia, outside Washington, D.C., also emphasized the importance of maintaining due process in immigration courts, particularly hearing notices to defendants. “Adequate notice of the hearing is on everybody’s list as a requirement of due process,” she said.
Churchill noted that the U.S. Supreme Court, in a decision a few years ago, written by Justice Neil Gorsuch, found that notices in immigration court often were not constitutionally adequate. “Justice Gorsuch said any notices that did not include the time and place of the hearing — which many of them did not; they just said time and place to be determined — those were not adequate notice of the hearing and therefore the cases were defective.”
In 2010, the ABA House of Delegates adopted a policy supporting the creation of an independent Article I system of immigration courts. More than 150 organizations support this position, including the National Association of Immigration Judges and the American Immigration Lawyers Association, Churchill said.
The program was co-sponsored by the ABA Commission on Immigration, ABA International Law Section, National Association of Women Judges, ABA Section of Administrative Law and Regulatory Practice and ABA Civil Rights and Social Justice Section.
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Thanks, Joan and Steve for forwarding this report and for doing such an outstanding job of highlighting the compelling, urgent need for this long-overdue reform.
PWS
03-29-23
https://www.justice.gov/eoir/page/file/1482556/download
Matter of M-M-A-, Respondent
Decided March 11, 2022
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.
WILSON, Appellate Immigration Judge: [Opinion]
In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.
Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.
Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2
I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.
2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.
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BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”
Under Garland, the “Miller Lite Holdover BIA” continues to pile up some really wrong, one-sided, and poorly-reasoned decisions that intentionally skew the law against migrants and adversely affect human lives. Decisions that punctuate Judge Joan Churchill’s call for an independent Article I Immigration Judiciary. In an article I posted yesterday, Joan argued persuasively that that EOIR never had true quasi-judicial independence. Decisions like this illustrate her point. https://immigrationcourtside.com/2022/03/12/%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%97%bdfeature-the-latest-issue-of-the-abas-judges/
Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice?
The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”
PWS
03-13-22
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
PWS
03-12-22
Many thanks to Judge Joan A. Churchill for spearheading this effort and for her many years of leadership and tireless dedication to the Article I Movement!
Endorsement of Art. I Bill (Final)
ENDORSEMENT OF H.R. 6577
BY
THE ROUND TABLE OF FORMER IMMIGRATION JUDGES February 18, 2022
The Round Table of Former Immigration Judges, composed of 52 for- mer Immigration and Appellate Immigration Judges, wholeheartedly endorses H.R. 6577. We urge its passage.
Members of the Round Table of Former Immigration Judges were appointed by and served under both Democratic and Republican administrations. Our periods of service on the bench span 1980 through December 2021. As former Immigration Judges, we are acutely aware of the systemic flaws in the placement of the Immigration Court within the Department of Justice, our nation’s highest law enforcement agency. Ever aware of our duty to exercise our independent judgment to accord due process, we conscientiously strove to do so throughout our years on the bench. However, challenges to our ability to do so were ever present. While we felt that we individually were administering impartial justice, we could not overcome the appearance of partiality, created by the structural flaw in the system, in the eyes of the parties and public.
Establishment of an independent Immigration Court under Article I of the Constitution is long overdue. On March 1, 1981 the Congressionally created bipartisan Select Commission on Immigration & Refugee Policy, issued its Final Report, entitled U. S. Immigration Policy and the National Interest, calling for creation of an Article I Immigration Court :
“The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” [pp. xxviii-xxix]
The Select Commission, which began its work in 1979, undertook an exhaustive study which ultimately identified and recognized the structural flaw which H.R. 6577 will finally correct. Steps taken by successive ad- ministrations since 1981 have not fixed the problem. Rep. Bill McCollum, (R FL), a prior Chair of the House Immigration Subcommittee, introduced several Article I Immigration Court bills over the years. It is not a partisan issue. The structure simply does not allow for truly impartial adjudication. Political policy making functions should not be commingled with adjudicative functions. Impartial adjudication is essential for due process. Congressional action is necessary to eliminate the systemic structural flaw. Passage of H.R. 6577 will do that. H.R. 6577 will establish a judicial structure for adjudicative immigration proceedings that will assure due process, an American value enshrined in the U.S. Constitution. We applaud the intro- suction of H.R. 6577 and look forward to its enactment.
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PWS
02-21-22
American Bar Association International Law Section
Program Spotlight: Refugees and Asylum in the U.S.
&
Review of Domestic Interpretations at Odds with International Guidance
Presented by the American Bar Association International Law Section, Immigration & Naturalization Committee, and the International Refugee Law Committee
Wednesday, November 10, 2021
12:00pm ET – 1:00pm ET
Register Today for this Free Program:
This program will review the differences between the Refugee and Asylum processes (which includes Withholding of Removal) in order to provide clarity to new practitioners about the stark contrasts between the two U.S. refugee programs and to inform on international law compliance.
Topic 1: Contrast and compare Refugees and Asylum law and process, and
Topic 2: Compare U.S. domestic interpretations of the legal criteria of Refugees and Asylum seekers with international law and policy.
Moderator and Chair: Joan Churchill (Former Immigration Judge)
Speakers:
Topic 1: The Hon. Paul Grussendorf
Paul Grussendorf has worked with both the refugee and asylum programs in the United States and abroad. He headed a law school legal clinic at the The George Washington University Law School representing asylum seekers, served as an Immigration Judge handling asylum cases, worked as a Supervisory Asylum Officer with the U.S. Department of Homeland Security Office of Citizenship and Immigration Services [CIS], as a refugee officer with Refugee Affairs Division of USCIS, and as a refugee officer and supervisor with the UNHCR, the UN Refugee Agency.
Topic 2: The Hon. Jeffrey Chase
Jeffrey Chase is a retired Immigration judge for New York City. He has written extensively about the inter relationship of international law sources with the U.S. national law when administering cases involving asylum and refugee applications.
He has a blog entitled Opinions/Analysis on Immigration Law. He coordinates The Round Table of Retired Immigration Judges, an informal group of Retired Immigration Judges from both the trial and appellate level, who weigh in on topics relating to the administration of justice by the Immigration Court. The Round Table files amici briefs, and has issued position papers and testimony on issues affecting due process and the administration of justice by the Immigration Courts.
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Many thanks to my round table friends and colleagues for putting this fantastic free program together and to the ABA International Law Section for sponsoring it!
In 1980, Congress enacted the Refugee Act of 1980 to bring the U.S. into compliance with the U.N. Convention & Protocol on The Status of Refugees, to which we are a signatory through the Protocol.
After some steady progress over the first two decades, today, as a result of actions taken by the last four Administrations since 2001, we are further away than ever from the goal of compliance. Bungling bureaucrats at DHS and DOJ wrongfully view large numbers of refugees and asylees as a “threat” to be “deterred,” rather than as the legal obligation and undeniable assets to our nation that they in truth are.
They fail miserably to fix systemic problems, to properly welcome refugees and asylees, and to adjudicate their claims in a fair and timely manner consistent with due process and racial justice. With stunning tone deafness, they eschew the advice of experts like Judges Churchill, Grussendorf, and Chase in favor of cruel, inept, and “bad faith” gimmicks, like gross misuse of Title 42 to suspend the asylum system indefinitely without Congressional approval.
One only has to look at the evening news to see firsthand what a horrible failure these “Stephen Miller Lite” policies have been and how they ruin lives and trash the reputation of our nation. The failure of the Biden Administration to make good on its campaign promises to migrants and refugees is nothing short of a national disgrace!
The first step in holding Mayorkas, Garland, and the others responsible for this ongoing mess accountable and restoring the rule of law is to understand how the system should and could work.
Then, you will have the tools to sue the hell out of the irresponsible public officials and their bumbling bureaucrats, lobby Congress for better protections for asylum seekers, and generate outraged public opinion until the rule of law, common sense, and human decency are restored to our land! And, we can save some lives that are well worth saving in the process!
Knowledge is power! The Biden Administration’s knowledge of how to implement an efficient, practical, legal, successful asylum system would fit in a thimble with room left over! Get the “upper hand” by listening to these Round Experts!
PWS
11-02-21
. . . .
In an interview with ABC News, Mr. Biden himself for the first time hinted at flexibility on the deadline, “if there are American citizens left.” That won’t be enough: This country’s moral responsibilities begin, but do not end, with U.S. citizens. On Tuesday, Sen. Ben Cardin (D-Md.) received and forwarded to Secretary of State Antony Blinken an appeal from the National Association of Women Judges on behalf of 250 Afghan women judges, trained by Americans and other Western countries, some of whom sentenced Taliban fighters to prison for murder or other crimes. These criminals have just been released by the Taliban. The judges have thus joined the ranks of the fearful. This country must make time for all of them.
https://www.nawj.org/blog/newsroom/news/nawj-statement-on-afghanistan
NAWJ Statement on Afghanistan
Written by National Association of Women Judges|August 15, 2021|News
NAWJ is the U.S. Chapter of the International Association of Women Judges, an organization which NAWJ founded, developed and helped grow. NAWJ joins the IAWJ in expressing our grave fears for the basic human rights of women and girls in Afghanistan as the Taliban advance and take control of large parts of the country. In particular, the women judges have disclosed that because they have followed their country’s laws, conducted trials, and administered sentences to the guilty, many of whom are members of the Taliban, they will soon be targeted for assassination. The AWJA judges have served in criminal, anti-corruption and narcotics courts, developed in conjunction with the United States over many years. Through their efforts, they have implemented rule of law and anti-corruption principles which are central to the mission statements of NAWJ and IAWJ.
At a virtual meeting of the AWJA last month, at which a number of NAWJ members were present, the Afghan judges spoke about the dangerous and difficult conditions in which they live and work. Some judges have lost their lives in terrorist attacks and several of the judges present had received death threats. Some have already been forced to flee their posts in the provinces with their families because it was too dangerous to remain. Their fears are not theoretical. In January, two women judges traveling to their jobs at the Supreme Court of Afghanistan, were murdered in the street. Now, the prisons housing convicted terrorists have been opened, and sentenced prisoners are contacting their judges threatening reprisals and revenge.
As a chapter of the IAWJ, an organization comprised of over 6500 women judges from more than 100 countries and territories worldwide, NAWJ wants to draw particular attention to the situation of Afghan women judges, given the special role they have played in upholding the rule of law and human rights for all, and the particular dangers they face as a result. We honor their commitment and their courage. Today, some 250 women serve as judges there.
Today, it is reported that the Afghan government has collapsed. The President of Afghanistan has fled the country. The United States Department of State is currently prioritizing visas for employees of the United States, including interpreters, as the United States reaches its date for final withdrawal from Afghanistan. NAWJ urges the Department of State to include the Afghan women judges and their families, who are in such a desperate and precarious position, in facilitating travel and processing visas in the same manner that special measures are being extended to interpreters, journalists and other personnel who provided essential service to the foreign military forces in Afghanistan. NAWJ urges our government to consider the fate of the women judges. By serving as judges and helping develop the Afghan judicial branch, women judges have helped establish the rule of law in their country, an essential pillar of a democratic state. Allowing them to be at the mercy of the Taliban and insurgent groups, given what they have sacrificed and contributed working side by side with the United States would be tragic indeed.
Hon. Karen Donohue
President, NAWJ
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Thanks to my friends and long-time colleagues Judge Churchill and Judge Tsankov for standing up and speaking out. I understand from them that Senior DC Court of Appeals Judge Vanessa Ruiz (also a past President of the NAWJ) was also instrumental in this effort.
Also, many thanks to Senator Ben Cardin (D-MD) for sending this to Secretary of State Anthony Blinken who hasn’t exactly covered himself in glory or shown much moral or intellectual courage in standing up for the rights and lives of refugees and energizing the bureaucracy to save lives.
Compare this with the conspicuous lack of moral, intellectual, and legal leadership and effective action from the Biden USDOJ on refugee and asylum issues.
Sadly, as many of us tried, in vain, to tell the incoming Biden Administration, failure to make immediate, bold, progressive, humanitarian, due process reforms at EOIR and to take a strong, courageous stand against the continuing misuse of bogus legal rationales to suspend refugee and asylum processing (and ignore our legal and moral obligations to refugees and other migrants) at the border will likely cripple the US response to arising human rights catastrophes and cost more innocent human lives.
Human rights and immigrant justice are not “back burner” issues! Nor are they “rocket science!” Delay costs lives and undermines democracy and our international leadership.
PWS
08-19-21
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Thanks to my long-time friends Joan and Debi for showing how our asylum system and the rest of our legal immigration system could and should work for the greatness of our nation. It also demonstrates the critical importance of pro bono representation in Immigration Court.
How wonderful that President Bush selected this as one of his examples of how immigrants ARE America! And, how different from the White Nationalist, racist, xenophobic myths that his GOP has made a vile staple of their despicable attempt to overturn our democracy and our cherished institutions. I have little doubt that if President Bush were in politics today the GOP would ride him out of the party like others who have spoken truth to his party’s horrible, Anti-American leaders!
With better leadership and independent expert Immigration Judges, our Immigration Courts could once again be a source of pride for our nation and our legal system rather than a deadly, unmitigated, self-created national disaster that undermines our national values while actively harming and dehumanizing those we should be protecting and welcoming.
PWS
05-12-21
https://immigrationimpact.com/2020/12/03/eoir-rules-immigration-judges/#.X8qg9NhKhPY
Katy writes at Immigration Impact:
The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.
While the rules are not likely to be finalized by the time President Biden takes office, they demonstrate the Trump administration’s continued commitment to dismantling the immigration system.
The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.
The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.
EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.
Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.
The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.
Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.
The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.
For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.
Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.
EOIR states that restricting continuances is necessary to decrease the over 1.2 million cases pending in the immigration court backlog. However, the answer to the backlog is not to throw due process out the window.
Eliminating docket-management tools could worsen the backlog.
Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.
The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.
Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.
FILED UNDER: EOIR, immigration judges
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Thanks Katy!
And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.
Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.
As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!
Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:
Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!
The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.
Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”
While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!
It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!
PWS
12-06-20
The Round Table of Former Immigration Judges is composed of 47 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed by and served under both Republican and Democratic administrations. We have centuries of com- bined experience adjudicating asylum applications and appeals. Our members include nation- ally-respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.
Our members issued decisions encompassing wide-ranging interpretations of our asylum laws during our service on the bench. Whether or not we ultimately reached the correct result, those decisions were always exercised according to our “own understanding and conscience,”1 and not in acquiescence to the political agenda of the party or administration under which we served.
We as judges understood that whether or not we agreed with the intent of Congress, we were still bound to follow it. The same is true of the Attorney General, Secretary of Homeland Security, and for that matter, the President.
INTRODUCTION
Initially we note that the current practice of reducing the time for notice and comment, severely undermines the ability for the public to digest and comment on rules. The reduction of time to
1 See Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954). 1
30 days violates the intent of Congress to give full deliberation to regulatory changes. As experi- enced adjudicators, we are in a unique position to contextualize these changes, but even with our experience, the breadth of these proposed regulations should allow for additional time to review and comment.
Next, we note that the Notice of Proposed Rulemaking (NPRM), contains changes that continue to diminish the role and function of the Board of Immigration Appeals (BIA) as an independent adjudicatory body free from political pressure. For example, the granting of certification author- ity to judges who are supposed to be subject to the appellate review of the BIA, does not further the objectives of finality or due process. Further, these rules are slanted in ways that diminish actions and take away tools used by Immigration Judges and Board to manage dockets and en- sure consideration of changed circumstances that might arise for either party. Under the NPRM, the Department of Homeland Security is invited to utilize unlimited power to reopen cases for negative information, and all opportunity for respondents to obtain reopening for new infor- mation have been removed.
In our review we do not object to the clarifications and changes regarding: 1) finality; 2) the ex- pansion of the authority to grant voluntary departure to the BIA; and 3) having cases that only need security checks being placed on hold by the BIA.
However, we do object to: 1) the proposed shortened briefing schedule; 2) simultaneous briefing in non-detained cases; 3) the prohibition from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence; 4) the elimination of the ability of immigration judges to consider issues beyond the express scope of the remand; 5) giving Immi- gration Judges Certification Authority over BIA decisions; 5) the proposed elimination of admi- nistrative closures; 6) the proposed elimination of the delegation of sua sponte reopening author- ity; 7) removal of BIA certification authority; 8) the imposition of new deadlines and timeframes for adjudication of appeals with those failing to be adjudicated in the specified time being re- ferred to the EOIR Director for adjudication; and 9) the elimination of Immigration Judge review of transcripts.
In short, there is little in the NPRM, that furthers the interests of ensuring a fair and neutral adju- dication. We are concerned with the overall diminishment of the BIA as an appellate body.
Read the full 17-page comment with the names of all the signers here:
BIA restructure regulation comments_FINAL
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B/T/W, “diminishment’ is a polite term for “dumbing down!” In this case, “further dumbing down.”
PWS
09-26-20
From Heather Cox Richardson:
. . . .
Ginsburg’s death has brought widespread mourning among those who saw her as a champion for equal rights for women, LGBTQ Americans, minorities, and those who believe the role of the government is to make sure that all Americans enjoy equal justice under law. Upon her passing, former Secretary of State Hillary Clinton tweeted: “Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you RBG.”
For many, she seemed to be the last defender of an equality they fear is slipping away. Robyn Walsh, a University of Miami religion professor, watched the outpouring of grief after Ginsburg’s death and wrote “It says a lot about us that the loss of one voice leaves women and their allies feeling so helpless. I am grateful for RBG, her advocacy, and her strength. I’m enraged that we find ourselves here.”
That rage, prompted by the prospect of a Trump appointee in Ginsburg’s seat, led donors to pour money into Democratic coffers tonight. Democratic donors gave more than $12.5 million in two hours to the ActBlue donation processing site, a rate of more than $100,000 a minute. The effect of the loss of her voice and vote on the court will become clear quickly. On November 10, just a week after the upcoming presidential election, the court is scheduled to hear a Republican challenge to the Affordable Care Act, also known as Obamacare. In 2012, the court upheld the law by a 5-4 vote.
Ginsburg often quoted Justice Louis Brandeis’s famous line: “The greatest menace to freedom is an inert people,” and she advised people “to fight for the things you care about, but do it in a way that will lead others to join you.” Setting an example for how to advance the principle of equality, she told the directors of the documentary “RBG” that she wanted to be remembered “Just as someone who did whatever she could, with whatever limited talent she had, to move society along in the direction I would like it to be for my children and grandchildren.”
Upon hearing of Ginsburg’s death, former U.S. Attorney and law professor Joyce Vance tweeted, “We should honor the life of RBG, American hero, by refusing to give in, refusing to back down, fighting for the civil rights of all people & demanding our leaders honor the rule of law. This is our fight now.”
Rest in power, Justice Ginsburg.
May her memory be a blessing.
From Letters From An American:
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I met Justice Ginsburg once in person at an event at the Supreme Court sponsored by the National Association of Women Judges (“NAWJ”). My long-time friend and colleague Judge Joan Churchill was the President of the NAWJ and had invited me to be a panelist. RBG stopped by the following reception to deliver some inspirational remarks.
Join the New Due Process Army and fight against the forces of tyranny, racism, bigotry, and inequality!
PWS
09-20-20
Statement of ABA President Bob Carlson
Re: Immigration lawyers and judges
WASHINGTON, Sept. 11, 2018 — The American Bar Association applauds the work of lawyers who help assure fairness and due process in our nation’s immigration courts. During a visit last month to the border in Texas, I was very impressed by their hard work in difficult circumstances. Our Constitution guarantees certain rights to all people in the United States, including men, women and children who come here to escape lawlessness and violence in their home countries.
The ABA strongly supports the independence of immigration judges and immigration courts. These courts should not be subordinate to any executive branch agency, including the Justice Department. Instead, we support the creation of truly independent immigration courts and judges under Article I of the U.S. Constitution. Such an arrangement would remove any perception that politics can play a role in dispensing justice with matters of immigration.
Our American democracy rests upon the rule of law – and the rule of law rests upon the work of impartial, independent judges, as well as knowledgeable, hard-working lawyers, including immigration attorneys who pursue justice, both for the government and for immigrants who seek asylum.
With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
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Thanks to my good friend and colleague Judge Joan Churchill for alerting me to this item. Joan has been doing some great work in behalf of the Article I Immigration Court through the Immigration Committee of the ABA’s National Conference of the Administrative Law Judiciary. I just joined that Committee at her urging, and encourage all of my colleagues — retired and active — to do the same. Let Joan or me know if you would like information on how to join.
PWS
09-17-17
Hon. Eliza Klein, USIJ (Ret.), Chicago, IL; Hon. William P. Joyce, USIJ (Ret.), Boston, MA
Hon. Lawrence O. ‘The Burmanator” Burman, Arlington, VA, ILS Chair & Conference Co-Chair; Eileen Blessinger, Esq., Falls Church, VA; Me; Barry Frager, Esq., Memphis TN, Conference Co-Chair
Hon. Lawrence O. Burman, Arlington, VA; Hon. Joan Churchill, USIJ (Ret.), Arlington, VA; Me; Hon. Eliza Klein, USIJ (Ret.), Chicago, IL
Hon. Lawrence O. Burman, Arlington, VA; Eileen Blessinger, Esq., Falls Church, VA; Me; Claudia Cubas, Esq., Washington, DC
