🛡️⚔️ ROUND TABLE FILES AMICUS BRIEF IN SUPPORT OF CERT PETITION —- ISSUE: For Judicial Review Of Non-Discretionary Immigration Determinations! — Bouarfa v. Mayorkas

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

Here are links to our brief and the Petition for Cert:

2023 01 02 — Bouarfa v. Sec. — IJs Amicus Brief

Bouarfa – Petition for Certiorari

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Richard W. Mark, Esquire
Richard W. Mark, Esquire
Partner
Gibson Dunn
New York
PHOTO: Gibson Dunn

Many thanks to Richard W. Mark, Esquire, and his team at Gibson Dunn for their pro bono representation on our brief!

🇺🇸 Due Process Forever!

PWS

01-05-24

🤯 JUSTICE ON THE ROCKS! ☠️ THE GOP HAS CORRUPTED THE FEDERAL JUDICIARY, WHILE THE DEMS CAN’T BRING DUE PROCESS AND QUALITY TO THE LARGE JUDICIARY THEY “OWN!” — Latest Rebuke By 5th Shows EOIR’s Sloppiness, Misrepresentations, Misconstructions, DOJ’s “Defense Of the Indefensible” In Quest To Deny Asylum To Refugees! — Recent Reports On “Management” & “Leadership” Deficiencies Show “The Wheels Are Coming Off The EOIR Circus Wagon!” 🤡

injustice
Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!

 https://www.ca5.uscourts.gov/opinions/unpub/20/20-60133.0.pdf

. . . .

Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.

. . . .

In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.

. . . .

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Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:

Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!

And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:

24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.

BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?

 Lest you doubt the “complete FUBARness” of EOIR, check these out:

  • EOIR ranked 420 out of 432 in list of USG “Best Places to Work” (97th percentile) https://naij-usa.us20.list-manage.com/track/click?u=fb6095c093c4ba52c1a1f5cec&id=e8849a6c94&e=a00508cc44;
  • Second worst component of DOJ;
  • Worst of all the small and mid-sized agencies ranked;
  • While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
  • EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
  • GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
  • The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
  • Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!

What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!

🇺🇸 Due Process Forever!

 PWS

04-30-23

 

 

🛡⚔️ THE LEGEND OF THE ROUND TABLE CONTINUES TO GROW! — Making A Difference Even When The Results Are Not What We Wished For! — PLUS, “BONUS COVERAGE” OF THE “SUPER MOON,” COURTESY OF “SIR JEFFREY!”

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

“Sir Jeffrey” Chase reports:

9th Circuit Decision in U.S. v. Bastide-Hernandez

Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.

However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.

Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:

“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”

I think that this lengthy reference demonstrates the importance of our work.

Best, Jeff

US v. Bastide-Hernandez

 

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In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.” 

What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?

Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!

Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!

We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!” 

That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.” 

Bonus Coverage:

“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”

Super Moon
“Super Moon”
July 13, 2022
By Hon. Jeffrey S. Chase

🇺🇸 Due Process Forever!

PWS

07-14-22

  

THE GIBSON REPORT — 03-28-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: ICE Lies To Congress About Attorney Access; BIA Flagged By 11th For Another “Categorical Approach” Blunder!

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

pastedGraphic.png

 

Weekly Briefing

 

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

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

NEWS

 

Biden Administration Prepares Sweeping Change to Asylum Process

NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.

 

USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries

CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.

 

ICE ending Etowah County immigration detention after ‘long history of serious deficiencies’

AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.

 

ICE claims ‘unabated’ legal access in detention during pandemic

Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”

 

Cruelty as Border Policy: The Biden Administration Keeps in Place CBP’s “Consequence Delivery System”

Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.

 

Boston asylum office has second lowest grant rate for asylum seekers in the country

GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.

 

Judge Orders Immig. Atty To Pay $240K For Asylum Scam

Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.

 

EOIR Announces 25 New Immigration Judges

More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.

 

Biden says the U.S. will take 100,000 Ukrainians. But how many will go?

WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.

 

Immigration, Environmental Law Links Deepen Under Biden

Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.

 

LITIGATION & AGENCY UPDATES

 

DHS Partly Barred From Tailoring Immigration Enforcement

Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.

 

CA2 “Weapons Bar” Remand: Kakar v. USCIS

Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.

 

CA 11 Says Marijuana Conviction Can’t Bar Removal Relief

Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.

 

Feds Lose Bid To Move Texas Sheriffs’ Immigration Policy Suit

Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.

 

DHS and DOJ Interim Final Rule on Asylum Processing

AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.

 

DOS Provides Guidance on Visas for Ukrainian Children

AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.

 

EOIR Updates Appendix O of the Policy Manual with Adjournment Code 22

AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”

 

HHS 60-Day Notice and Request for Comment on Forms for Sponsors for Unaccompanied Children

AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

GENERAL EVENTS

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

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

www.immigrantjustice.org | Facebook | Twitter

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The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.” 

That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.

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

With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!  

As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.

🇺🇸Due Process Forever!

PWS

03-29-22

 

 

🤮GARLAND’S VERY BAD WEEK CONTINUES: SHORT “SHELF LIFE” 👎🏽 IN 9TH CIR. FOR BIA’S LATEST ATTEMPT TO SIDESTEP THE STATUTE AND BLOW OFF THE SUPREMES IN LAPARRA! — Backlog, Chaos, Continue To Grow As Notice For Many “Contrived” In Absentia Orders Blasted Away! — Singh v. Garland

Kangaroos
“Statutes are so totally annoying! Enforcing them is above our pay grade, if it burdens our ‘partners’ at DHS Enforcement! But, we’ll ‘throw the book’ at individuals for anything! Seems fair to us!”
https://www.flickr.com/photos/rasputin243/
Creative Commons 

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

The Supreme Court’s decisions in Pereira and Niz-Chavez, along with the text and structure of the statutory provisions governing in absentia removal orders and Notices to Appear, unambiguously required the government to provide Singh with a Notice to Appear as a single document that included all the information set forth in 8 U.S.C. § 1229(a)(1), including the time and date of the removal proceedings. Because the government did not provide Singh with statutorily compliant notice before his removal hearing, Singh’s in absentia removal order is subject to recission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s petition on that ground, do not reach his exceptional circumstances argument, and remand to the BIA for further proceedings consistent with this opinion.

PETITION GRANTED and REMANDED.

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No surprise to “Sir Jeffrey” Chase, me, or experts. What is “below the radar screen” here is how the BIA’s “pattern or practice” of intentional misinterpretation of this very clear statutory provision over three Administrations and in a number of situations has fed the backlog. 

One of the “gimmicks” used by DOJ and EOIR to short-circuit due process has been to use bogus “in absentia” orders to complete cases without real hearings and without doing much work while creating a “myth of non-appearance” by asylum seekers. Indeed, under Garland whole dockets were set up with the expectation that individuals would not appear. Agency officials then “cheered” having produced these bogus “final orders.”

It would be unusual if ANY of those subjected to this process under a Garland received “compliant NTAs” sufficient to support in absentia orders! Even with these “gimmicks,” and many more judges, haphazardly selected and often lacking expertise, the backlog has mushroomed. 

In truth, asylum seekers appear for their hearings at a rate approaching 100% provided that they get proper notice, understand the process, and are represented. A competent Attorney General would take this empirical data, work with legal services groups, and develop a process to comply with the statute, improve the notice system, promote universal representation, and reduce in absentia hearings. 

The obvious first step would be to absolutely require DHS to comply with statutory requirements in issuing Notices to Appear and to impose meaningful sanctions and consequences for the failure to do this. To the extent that the failure to comply is a function of the EOIR/DOJ bureaucracy, those bureaucrats and politicos responsible should also be held accountable by the Immigration Courts. 

That’s what fair, impartial, independent judging is supposed to be about! But, Garland, like his predecessors, has tried to “gimmick” his way out of providing fair hearings as required by the statute and our Constitution while ignoring “best practices.”

Does anyone seriously think that a group of “real appellate judges” — experts committed to fair and impartial interpretations that advance due process while promoting best practices — would have come up with the Laparra nonsense? No way! 

Yet given a chance to materially improve EOIR’s performance, Garland has chosen the “quality, excellence, and due process for all is optional, at best” approach of his predecessors, even if shying away from their overt weaponization of EOIR against migrants.

Remember, when Garland and company inevitably attempt to deflect or shift blame for their backlogs and “Aimless Docket Reshuffling” to the victims, those stuck in his dysfunctional system and their lawyers, this backlog is largely self-created by folks who have consistently ignored expert advice and input while failing to install competence, expertise, and demonstrated commitment to guaranteeing fairness and due process for all into a broken, biased, and intentionally unfair system! 

🇺🇸Due Process Forever!

PWS

02-04-22

 

😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.” 

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.” 

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987). 

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades. 

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court. 

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table. 

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords. 

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

Knightess
Knightess of the Round Table

⚖️🗽CHAMPIONS OF JUSTICE, MAKING A DIFFERENCE: 🛡⚔️ Round Table’s Fight For Better Policies, Best Practices, Earns Acclaim!

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

From “Sir Jeffrey” Chase:

Our statement yesterday on MPP was referenced and quoted by CNN at the end of this article by Priscilla Alvarez and Geneva Sands on the MPP restart:

https://www.cnn.com/2021/12/06/politics/biden-remain-in-mexico/index.html

Priscilla Alvarez
CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN
Geneva Sands
CNN Digital Expansion 2019, Geneva Sands

This morning, Democracy Now referenced our letter in a segment covering the issue, saying:

 A group of former immigration judges released a statement condemning the return of the program as the “antithesis of fairness.”  

Here is the link:

https://www.democracynow.org/2021/12/7/biden_trump_era_remain_in_mexico

Furthermore, in oral arguments before the Supreme Court yesterday in Patel v. Garland, our amicus brief received a brief mention:

  • JUSTICE KAVANAUGH: — questions, how 

  • 10  could an appellate court — and this question 

  • 11  cuts both ways, so — but how can an appellate 

  • 12  court look at a cold record and determine a 

  • 13  factual error when it relates to credibility, 

  • 14  for example, or something like that? Just give 

  • 15  me some examples where this will matter, I 

  • 16  guess. 

  • 17  MR. FLEMING: Well, there — as the 

  • 18  amici, the American Immigration Lawyers 

  • 19  Association and the EOIR judges, point out, it 

  • 20  — it’s not uncommon.Best, Jeff

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

And, here’s more coverage from Human Rights First:

Courtesy Paul Ratje — AFP via Getty Images

 

A man sits in a migrant camp near Reynosa, Tamaulipas, Mexico.

The new version of MPP expands its focus to asylum seekers from across the hemisphere, stranding even more people seeking safety in dangerous conditions at the border.

 

Kennji Kizuka, Associate Director for Research and Analysis, Refugee Protection, appeared on Democracy Now! and detailed the many human rights violations faced by asylum seekers processed under the “Remain in Mexico” policy.

 

“It’s extraordinarily concerning that the Biden administration is not only restarting this policy but expanding it,” said Kizuka.

Human Rights First also announced the resumption of our research documenting the human rights abuses suffered by people turned away to wait in danger under MPP.

 

Human Rights First’s Associate Attorney, Refugee Protection Julia Neusner and Advocacy Strategist for Refugee Protection Ana Ortega Villegas are on the ground in Ciudad Juárez to monitor the first days of MPP’s reinstatement.  Please follow their live updates and other reports through Human Rights First’s twitter account.

Our team’s view of the Mexican government’s

staging area in Cuidad Juárez for Remain in Mexico 2.0

 

Our position is gaining widespread support from those who understand the issue.  The Roundtable of Former Immigration Judges condemned

MPP as the “antithesis of fairness,” concluding that there has been “no greater affront to due process, fairness and transparency,” and called for administration to “permanently end the program.”

 

The union for U.S. Citizenship and Immigration Services (USCIS) asylum officers tasked with MPP screenings call it “irredeemably flawed.”  They said that restarting MPP “makes our members complicit in violations of U.S. federal law and binding international treaty obligations of non-refoulement that they have sworn to uphold.”

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

So proud to be a part of this group and so grateful for the leadership of colleagues like Judges Jeffrey Chase, Ilyce Shugall, Lory Rosenberg, Carol King, Joan Churchill, Denise Slavin, Sue Roy, John Gossart, Charles Honeyman, Charlie Pazar, Sarah Burr, Cecelia Espenoza, Bruce Einhorn, Tue Phan-Quang, Bob Weisel, Paul Grussendorf, Jennie Giambastini, and many, many, many others! 

As an “appreciative fellow NDPA member” told me yesterday, “it’s a true team effort!“ This type of teamwork for the public good was once encouraged at EOIR and even incorporated into the “leadership vision,” but now, sadly, it has “fallen by the wayside” in what has basically become a “haste makes waste race to the bottom.”

Fortunately, the Round Table and other members of the NDPA still share a “vision of what American justice should look like” and are willing to speak up for what’s legal and right rather than just “expedient!”

🇺🇸Due Process Forever!

PWS

12-09-21

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

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

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1  Matter of A-B-,  issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2  Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3  And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being.  Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment.  If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5  That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6  While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.”  In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone.  Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave.  While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7  While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country.  While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone.  In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8  However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9  And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset.  The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10  Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection.  In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous.  However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County.  The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12  But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted.  Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist.  However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course.  The problem is compounded by the particular composition of the BIA at present.  For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims).  Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-.  This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state.  The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy.  Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward.  Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).
  2. 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).
  3. 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).
  4. 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).
  5. 26 I&N Dec. 388 (BIA 2014).
  6. The regulations under consideration at that time were never issued.
  7. 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
  8. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
  9. James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
  10. Hathaway and Foster, supra.
  11. Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
  12. Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
  13.  L-E-A- I, supra at 47.
  14. See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

 

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

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 
    • No regulation can bring decisional integrity and expertise to a body that lacks both! 
    • Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
      • Progressive judges appointed to BIA: 0
      • Progressive judges appointed to Immigration Court: 0
      • Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
      • Billy Barr Selected Immigration Judges Appointed: 17
      • “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
      • Number of BIA precedents decided in favor of respondent: 2
      • Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense? 

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

🤡MORE AMATEUR NIGHT @ THE BIJOU — A NEVER ENDING DISASTER SAGA 🏴‍☠️ — Tsunami Of New Asylum Cases Headed For Garland’s Dysfunctional, Unprepared, Backlogged Immigration “Courts” 🆘 — Will It Take A Legal & Human Disaster Of Epic Proportions To Get The Attention Of Ex-Federal Judge Who Apparently Thinks Racial Injustice & White Nationalist Domestic Terrorism In U.S. Are Unrelated To His Disgraceful “Star Chamber Courts” ☠️ & Their Systemic Abuse of Asylum Seekers, Women, Migrants Of Color, & Their Attorneys! — Experts’ Common Sense Calls For “Smarter Immigration Courts” Apparently Ignored By Tone-Deaf DOJ!

Amateur Night
Judge Garland is looking for 100 new Immigration Judges to eliminate the 1.3 million backlog by the end of the century. No expertise necessary!
PHOTO: Thomas Hawk
Creative Commons
Aline Barros
Aline Barros
Immigration Reporter
VOA News
PHOTO: Twitter

https://www.voanews.com/usa/us-immigration-courts-brace-flood-asylum-claimsb

Aline Barros reports for VOA News:

U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.

. . . .

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

“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.

“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.

. . . .

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”

. . . .

U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).

In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.

“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”

A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”

. . . .

“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.

Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.

“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.

“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.

While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.

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

Read the complete article at the link.

Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”

But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.

Let’s be clear about one thing. Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!

Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.

And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?

With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of  justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.

Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.

Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!

But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!

There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs. 

Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?

Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.

Wonder what the Judge’s  “emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context. 

Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.

I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it! 

🇺🇸⚖️🗽Due Process Forever!

PWS

04-12-21

 

🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

A Parting Shot At Women

As the Trump Administration comes to an end, let’s remember how it began.  On the day following the inauguration, millions participated in Women’s Marches around the world.  There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.

It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence.  That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated.  The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound.  The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.

The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection.  Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.

There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-.  Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below.  But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers.  As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.

So what does the new decision of the recent Deputy Transportation Secretary say?  It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.

As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection.  The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.

I’m not sure of the need for what follows on the topic.  Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available.  Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap.  Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.”  No court has ever said that it was.  Let’s move on.

The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established.  This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father.  The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.

Our laws recognize that persecution can arise for multiple reasons.  A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm.  The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”

In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm.  Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store.  But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted.  This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed

In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction.  The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family.  The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.

I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice.  The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable.  I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political.  I’m not sure what jumps out in that example as evidence of animus towards the family itself.  How would one apply the Romanov test to anyone ever appearing in Immigration Court?  By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.

Of course, this is just my humble opinion.  The assistant Transportation czar feels differently.  Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”

I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference.  Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied.  (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).

But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference.  It is instead a legal standard not specific to asylum or immigration law.

For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity.  In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes.  In determining nexus, the Court stated:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context.  What would give an Acting Attorney General the authority to hold otherwise?

A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.

However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required.  The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.

Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1  While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test.  The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.”  This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive.  Perhaps the author required more than three weeks at the Department of Justice to understand this.

I write this on the last full day of the Trump presidency.  Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.

Note:

1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.  See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).

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

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.

Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team. 

The Clown Show🤡🦹🏿‍♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹

🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!

And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”

“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!

Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿‍♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮

PWS

01-20-20

🛡⚔️⚖️ROUND TABLE (WITH LOTS OF HELP FROM OUR FRIENDS @ AKIN GUMP) CONTINUES TO AID NDPA ⚖️🗽🦸🏽‍♂️🦸‍♀️IN TAKING IT TO THE EOIR CLOWN SHOW🤡🧟! —  The Forces Of Bigotry, White Nationalism, “Dred Scottification,” & Malicious Incompetence Will Be Driven From The Field & Removed From  The Power They Have So Grossly & Disgracefully Abused! — Read Our Latest Amicus Brief ⚖️🗽👍👨🏽‍⚖️🤵🏻‍♀️👩‍⚖️ In Pangea II Here!

2020.12.30 DE 41 Admin Motion for Leave to File Amicus Brief

Knightess
Knightess of the Round Table
Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief.  Couldn’t do it without you!😎

Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩‍⚖️🧑🏽‍⚖️👨🏻‍⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿‍♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴‍☠️⚰️👎🏻 nation.”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

⚖️🗽Due Process Forever!

Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸

PWS

12-31-20

🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

Erica Newland
Erica Newland
Former DOJ Attorney
Photo source: lawfareblog.com

https://www.nytimes.com/2020/12/20/opinion/trump-justice-department-lawyer.html?referringSource=articleShare

. . . .

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

. . . .

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Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along  to get along with fascism, is wrong. Duh!

It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.” 

But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”  But, that doesn’t mean that the rest of us can’t demand some accountability for participation in  what are essentially “crimes against humanity.” 

Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.

It’s also why the the Biden-Harris team that takes over at DOJ must: 

  1. immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity; 
  2. replace them with qualified individuals from the NDPA; and 
  3. be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies. 

American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations). 

The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,  failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.

⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

PWS

12-21-20

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

   

@THE SUPREMES⚖️👩🏻‍⚖️: Round Table🛡, ACLU 🗽Push Back Against S.G. Francisco’s 🤮False/Misleading Narratives! – NO, Migrants Seeking Mandatory Protection From Persecution In “Withholding Only Proceedings” Are NOT “Just Like Any Other Deportable Individuals” – NO, Providing Due Process In Bond Hearings Will NOT “Overload” The System —  It’s A Significant, Yet Routine, Part Of Any Immigration Judge’s Job! – What “Overloads” The System Is The Race-Driven “Malicious Incompetence” Of Trump’s DOJ/EOIR!        

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

Asher Stockler reports for Law360:

. . . .

But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.

The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the

 

https://www.law360.com/articles/1327892/print?section=appellate 1/2

11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360

deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.

The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”

“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.

But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.

“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.

 

The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.

The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.

The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.

–Editing by Michael Watanabe.

 

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Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.

That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!

Many, many, many thanks to our all-star pro bono team:

David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

Couldn’t have done it without you guys! You constantly “Make us look smart!”

You can read our complete amicus brief here:

19-897 bsac Immigration Judges

According to “Round Table Oracle,” Sir Jeffrey S. Chase, this is our sixth filed Supreme Court amicus brief, with another currently in the pipeline.

And, they do make a difference! For those who missed it, the Round Table amicus in Niz-Chavez v. Barr was specifically mentioned during oral argument before the Court: https://www.c-span.org/video/?471191-1/niz-chavez-v-barr-attorney-general-oral-argument

I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:

  • Rachel McFarland, my former Georgetown Law student;
  • Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
  • Mark Stevens, who appeared before me at the Arlington Immigration Court.

Well done, fearless fighters for due process!

Rachel McFarland
Legal Aid Justice Center
Charter Member, New Due Process Army

This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.

Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.

I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.

Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.

Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!

The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!

Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.

It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.

It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.

It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.

Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)

Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!

The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.

The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!

And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.

The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.

American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”

And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:

  • Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
  • Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

 

PWS

11-14-20

 

 

 

 

 

 

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

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

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

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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The Outrageous Decision to Decertify the IJ’s Union

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

Due Process Forever!

PWS

11-09-20

ON THE MOVE: NDPA SUPERSTAR 🌟 LAURA LYNCH TAPPED TO BECOME SENIOR IMMIGRATION POLICY ATTORNEY FOR NATIONAL IMMIGRATION LAW CENTER (“NILC”)

Laura Lynch
Laura Lynch
Senior Policy Counsel
AILA

A graduate of the University of Baltimore Law, Laura has been Senior Policy Counsel at the American Immigration Lawyers Association (“AILA”) National Office in Washington, D.C. for the past four years. In that role, she engaged with Federal agencies, Congress, and designated AILA committees on immigration issues with a focus on interior enforcement, due process, and removal defense. Immigration Court Reform was one of Laura’s key areas of expertise.

 

Importantly, from my personal standpoint, Laura has been (and will continue to be, I hope), part of the “Informal Strategic Planning Group” for the New Due Process Army (”NDPA”) that includes Dan Kowalski, Michelle Mendez, Debi Sanders, Tess Hellgren, and my Round Table colleagues Judge Jeffrey S. Chase and Judge Ilyce Shugall! Her many contributions to our camaraderie and work in behalf of due process and fundamental fairness have been nothing short of spectacular!

 

The good news is that, although NILC is headquartered in Los Angeles, Laura will be remaining in Washington, D.C. While she tells me that her “precise portfolio” at NILC is “TBD,” I know we will be hearing much more from our “Due Process Superstar” in the future.

 

Thanks for all your past contributions and all the best for the future, Laura, from all of your many “admirers and fellow soldiers in the NDPA!”

 

Due Process Forever!

 

PWS

11-02-20