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

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

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

October 16, 2023, 5:13 pm

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

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

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

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

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

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

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Cision

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

SOURCE National Press Club

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

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

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

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

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

🇺🇸  Due Process Forever!

PWS

10-17-23

 

🤯 THE MUNDANE RIDICULOUSNESS OF GARLAND’S BROKEN COURTS — 19-Month-Late “Notice” Of Rescheduling? — “Just Another Day @ The Office” For Those Stuck In “EOIR-land!”

 

From my Linked-In feed today:

This is what we immigration lawyers have to deal with. A court notice for a case mailed 12/27/2022 telling me that the trial scheduled for 5/18/2021 has been cancelled.

Late Notice
“Late Notice”

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Notably the one thing this incredibly belated notice DOESN’T do: Provide an actual date and time for the “rescheduled” hearing! That will probably come only after an in absentia has been issued!

A great public research project: What are the backlog and fiscal consequences of DHS’s & EOIR’s joint intentional failure to comply with statutory notice requirements in Non-LPR cancellation cases? (a/k/a “The Pereira Debacle” — for which there has been absolutely NO official accountability).

NO MORE Attorneys General who lack actual experience representing individuals before EOIR!

Alfred E. Neumann
One of America’s largest, most important, most backlogged, and completely FUBAR Federal “Court” Systems would likely run much better if the person in charge (U.S. Attorney General) had actually been subjected to the indignities and incredible stresses of attempting to get justice for a real-life person at EOIR! Enough of the “What Me Worry” approach of Garland and other tone-deaf, “above the fray” Dem politicos!
PHOTO: Wikipedia Commons.

🇺🇸 Due Process Forever!

PWS

01-09-23

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results. 

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

☹️🤯CBP BLUNDERS BURDEN COURTS, INDIVIDUALS! — DHS Fails On “Ministerial Act” Of Filing NTA In 1 Of 6 Cases, Causing Massive Dismissals!

TRAC reports:

https://trac.syr.edu/immigration/reports/691/

DHS Fails to File Paperwork Leading to Large Numbers of Dismissals

Published Jul 29, 2022

One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases. See Figure 1. The number of case closures along with those dismissed because no NTA was filed are shown in Table 1.

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Figure 1. Immigration Court Cases Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings, FY 2013 – FY 2022 (through June)

Table 1. Immigration Court Cases Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings, FY 2013 – FY 2022 (through June)

Fiscal Year All Court Completions Dismissed: No NTA Filed
Number Percent
2013 167,446 355 0.2%
2014 160,483 225 0.1%
2015 168,684 41 0.0%
2016 178,052 11 0.0%
2017 179,153 84 0.0%
2018 193,391 505 0.3%
2019 276,647 4,686 1.7%
2020 243,367 5,952 2.4%
2021 144,751 15,244 10.5%
2022* 284,446 47,330 16.6%

* Through the first 9 months (Oct-June 2022). If pattern continues, FY 2022 would end with 63,107 projected dismissals.

Ten years ago this failure to file a NTA was rare. But as the onset in Table 1 shows, the frequency increased once Border Patrol agents were given the ability to use the Immigration Court’s Interactive Scheduling System (ISS). Using ISS, the agents can directly schedule the initial hearing (i.e. a master calendar hearing) at the Immigration Court. Supposedly, the actual NTA is created at the same time, and a copy given to the asylum seeker or other noncitizen with the scheduled hearing location and time they are to show up in Court noted on the NTA.

Thus, the process only requires that CBP actually follow up with the ministerial task of seeing that the Court also receives a copy of the NTA. With the implementation of the Court’s ECAS system of e-filing, this should have made the process quick and straightforward. That this is failing to be done suggests there is a serious disconnect between the CBP agents entering new cases and scheduling hearings through the Court’s ISS system, and other CBP personnel responsible for submitting a copy to the Court.

This is exceedingly wasteful of the Court’s time. It is also problematic for the immigrant (and possibly their attorney) if they show up at hearings only to have the case dismissed by the Immigration Judge because the case hasn’t actually been filed with the Court.

Where Is This Problem Occurring?

TRAC has sought, but has yet been unable to obtain, information on the specific Border Patrol units and locations where failure to file these NTAs is occurring. However, an analysis of all Court hearing locations finds that there are some Courts where the majority of all case completions are these dismissals for failing to file the NTA.

Leading the list in terms of the number of these NTA closures is the Dedicated Docket hearing location in Miami. Fully 7,700 out of the total of 9,492 case completions during FY 2022 — or 81 percent — were dismissals because the Court had not received the NTA.

While the situation for the Dedicated Docket in Miami was extreme, a number of Dedicated Docket locations have much higher dismissal rates than occur nationally where 1 out of 6 (17%) of case completions are closed for this reason. In Boston’s Dedicated Docket the rate of dismissal during the first 9 months of FY 2022 has been 62 percent, and in New York’s and Los Angeles’ Dedicated Dockets the rate is 32 percent – almost twice the national average.

But other Dedicated Docket locations have below average dismissal rates. These include San Francisco with 11 percent, New York’s separate Broadway DD hearing location with 15 percent, and Newark with 16 percent. [1] While It would appear that a policy which tries to accelerate the scheduling and hearing of cases puts additional pressure on DHS to promptly file, it isn’t an insurmountable burden. [2]

Further, some regular hearing locations have also been experiencing high dismissal rates because of DHS’s failure to file NTAs. These include Houston with 54 percent, Miami with 43 percent, and Chicago with 26 percent.

For a list of Immigration Court hearing locations with their individual dismissal rates because of DHS’s failure to file the NTA see Table 2.

Table 2. Immigration Court Cases by Hearing Location Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings in FY 2022 (October 2021-June 2022)

Court Hearing Location All Court Completions Dismissed: No NTA Filed Rank: No NTA
Number Percent Number Percent
All 284,446 47,330 17%
IAD designated Hearing Locations* 5,516 5,516 100% 3 1
Miami – Dedicated Docket – DD 9,492 7,700 81% 1 2
Boston – Dedicated Docket – DD 2,752 1,698 62% 6 3
Houston, Texas 7,518 4,064 54% 4 4
Miami, Florida 16,644 7,155 43% 2 5
El Paso – Dedicated Docket – DD 169 69 41% 48 6
Los Angeles – Dedicated Docket – DD 3,006 974 32% 10 7
New York – Dedicated Docket – DD 3,436 1,098 32% 8 8
Chicago, Illinois 5,006 1,292 26% 7 9
Denver – Dedicated Docket – DD 1,019 258 25% 32 10
Orlando, Florida 3,437 640 19% 19 11
Charlotte 6,057 979 16% 9 12
New York Varick 4,254 676 16% 17 13
Newark – Dedicated Docket – DD 1,854 290 16% 29 14
Atlanta Non-Detained Juvenile 421 65 15% 49 15
NYB – Dedicated Docket – DD 1,183 179 15% 33 16
MPP Brownsville Gateway International Bridge 848 126 15% 37 17
Houston – S. Gessner 6,179 914 15% 11 18
Leland Federal Building 3,241 477 15% 23 19
Philadelphia, Pennsylvania 5,284 748 14% 14 20
Santa Ana Immigration Court 6,257 874 14% 12 21
Chicago Non-Detained Juveniles 101 14 14% 65 22
New York City, New York 21,202 2,784 13% 5 23
Boston, Massachusetts 5,793 748 13% 14 24
New Orleans, Louisiana 5,139 647 13% 18 25
Arlington, Virginia 6,546 821 13% 13 26
Phoenix, Arizona 3,869 480 12% 22 27
San Juan, Puerto Rico 406 49 12% 52 28
Denver, Colorado 4,547 506 11% 20 29
San Francisco – Dedicated Docket – DD 1,437 159 11% 35 30
New York Broadway 6,593 708 11% 16 31
Sacramento Immigration Court 1,285 131 10% 36 32
Kansas City, Missouri 1,145 115 10% 41 33
Omaha, Nebraska 1,419 125 9% 38 34
San Diego, California 3,539 289 8% 30 35
Atlanta, Georgia 3,596 285 8% 31 36
Pittsburgh, Pennsylvania 220 17 8% 61 37
San Diego – Dedicated Docket – DD 288 22 8% 60 38
El Paso, Texas 2,208 168 8% 34 39
Las Vegas, Nevada 1,622 119 7% 40 40
Detroit, Michigan 1,953 124 6% 39 41
Van Nuys Immigration Court 6,405 388 6% 24 42
Houston Greenspoint Park 5,738 338 6% 26 43
Buffalo, New York 1,439 82 6% 43 44
Cleveland, Ohio 5,557 316 6% 27 45
Laredo Immigration Court 443 25 6% 58 46
San Francisco, California 9,277 502 5% 21 47
Mia Non-Detained Juveniles 536 29 5% 53 48
Newark, New Jersey 6,568 345 5% 25 49
San Francisco Non-Detained Juveniles 226 11 5% 68 50
Honolulu, Hawaii 278 13 5% 66 51
MPP Court El Paso 604 27 4% 55 52
Seattle – Dedicated Docket – DD 588 26 4% 56 53
Harlingen, Texas 1,811 78 4% 46 54
Portland, Oregon 1,281 54 4% 51 55
MPP Laredo,texas – Port of Entry 143 6 4% 72 56
Salt Lake City, Utah 1,949 80 4% 44 57
Tucson, Arizona 791 29 4% 53 58
MPP Court San Ysidro Port 195 7 4% 71 59
Charlotte Juvenile 477 17 4% 61 60
Reno, Nevada 330 11 3% 68 61
Memphis, Tennessee 3,837 114 3% 42 62
Hartford Juvenile 144 4 3% 73 63
Los Angeles – North Los Angeles Street 3,253 78 2% 46 64
Los Angeles, California 12,702 304 2% 28 65
Hartford, Connecticut 2,596 60 2% 50 66
Bloomington 3,577 79 2% 45 67
Imperial, California 497 9 2% 70 68
Bloomington Juvenile 177 3 2% 77 69
Arlington Juvenile 950 16 2% 64 70
Boston Unaccompanied Juvenile 817 13 2% 66 71
Detroit – Dedicated Docket – DD 200 3 2% 77 72
Memphis Juvenile 288 4 1% 73 73
Philadelphia Juvenile 375 4 1% 73 74
San Antonio, Texas 3,015 26 1% 56 75
Florence, Arizona 270 2 1% 79 76
Dallas, Texas 3,667 23 1% 59 77
New Orleans Juvenile 166 1 1% 81 78
Seattle, Washington 3,170 17 1% 61 79
Baltimore, Maryland 2,772 4 0% 73 80
Hyattsville Immigration Court 1,939 2 0% 79 81
Louisville, Kentucky 1,110 1 0% 81 82
Pearsall, Texas – Detention Facility 1,505 0 0% none none
Winn Correctional Facility 1,342 0 0% none none
Port Isabel Service Processing Center 1,324 0 0% none none
San Francisco Annex 1,017 0 0% none none
Stewart Detention Center – Lumpkin Georgia – LGD 866 0 0% none none
Conroe Immigration Court 754 0 0% none none
Baltimore, Maryland Juvenile 737 0 0% none none
Aurora Immigration Court 676 0 0% none none
San Antonio Satellite Office 654 0 0% none none
Boise, Idaho 575 0 0% none none
Moshannon Valley Correctional Facility 574 0 0% none none
Stewart Immigration Court 569 0 0% none none
T. Don Hutto Residential 527 0 0% none none
Jackson Parish 496 0 0% none none
Krome North Service Processing Center 474 0 0% none none
Prairieland Detention Center 470 0 0% none none
Imperial Detained 462 0 0% none none
Atlanta Non-Detained 417 0 0% none none
Otay Mesa Detention Center 407 0 0% none none
Chicago Detained 406 0 0% none none
Laredo, Texas – Detention Facility 404 0 0% none none
Lasalle Detention Facility 390 0 0% none none
Northwest Detention Center 382 0 0% none none
Eloy INS Detention Center 381 0 0% none none
Polk County Detention Facility 377 0 0% none none
El Paso Service Processing Center 372 0 0% none none
Otero County Processing Center 350 0 0% none none
Southwest Key 348 0 0% none none
Bluebonnet Detention Center 344 0 0% none none
Cleveland Juvenile 340 0 0% none none
Rio Grande Detention Center 319 0 0% none none
Denver Family Unit 282 0 0% none none
DHS-Litigation Unit/Oakdale 259 0 0% none none
Caroline Detention Facility 248 0 0% none none
Immigration Court 247 0 0% none none
Denver – Juvenile 245 0 0% none none
Houston Service Processing Center 240 0 0% none none
La Palma Eloy 237 0 0% none none
Batavia Service Processing Center 228 0 0% none none
Karnes County Correction Center 224 0 0% none none
Mcfarland-Mcm For Males 224 0 0% none none
River Correctional Facility 221 0 0% none none
Dilley – Stfrc 217 0 0% none none
Boston Detained 215 0 0% none none
Broward Transitional Center 202 0 0% none none
San Antonio Non-Detained Juvenile 182 0 0% none none
La Palma 179 0 0% none none
Seattle Non-Detained Juveniles 177 0 0% none none
Louisville Juvenile 175 0 0% none none
Orange County Correctional Facility 173 0 0% none none
Cibola County Correctional Center 161 0 0% none none
South Louisiana Correctional Center 161 0 0% none none
Richwood Correctional Center 158 0 0% none none
Nye County 150 0 0% none none
Kansas City Immigration Court – Detained 148 0 0% none none
San Diego Non-Detained Juvenile 142 0 0% none none
Bloomington Detained 137 0 0% none none
Desert View 131 0 0% none none
Giles W. Dalby Correctional Institution 122 0 0% none none
Joe Corley Detention Facility 116 0 0% none none
Texas DOC- Huntsville 112 0 0% none none
Torrance County Detention Facility 109 0 0% none none
Calhoun County Jail 107 0 0% none none

* Note all closures are for the failure to file a NTA. The Court created these special “IAD locational codes” ultimately within 77 Courts beginning back in July 2018. The cases they handle appear to consistently close because no NTA was filed. In FY 2022 these “IAD” dismissals were recorded as spread across 31 different Immigration Courts (“base cities”). Thus, this “IAD” tag appears to function largely as a book-keeping measure to separate out these dismissals from the rest of the Court’s proceedings at these diverse locations.

Footnotes

[1]^ Three other Dedicated Docket locations which have a relatively small number of closures to date also weren’t experiencing high dismissal rates. These included Detroit where only 3 out of its 200 closures (2%) were because the NTA hadn’t been filed; Seattle with just 26 cases dismissed out of its 588 closures (4%); and San Diego with 22 dismissals out of its 288 closures (8%).

[2]^ See TRAC’s January 2022 report noting significant dismissal rates for failure to file at Dedicated Docket hearing locations. The rate then was 10 percent so the problem has considerably worsened since then.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

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It’s not rocket science! 🚀

Compare the reality of easily fixable systemic Government failures with gimmicks and harsh sanctions meant to dishonestly shift blame and consequences to individual victims.

🇺🇸Due Process Forever!

PWS

07-31-22

⚖️👩🏽‍⚖️NOLAN RAPPAPORT @ THE HILL: THE EOIR BACKLOG IS GETTING WORSE — GARLAND DOES NOT APPEAR TO HAVE THE ANSWER — I’m Quoted In The Article!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill

Immigration courts are overrun with cases, and it’s only getting worse  

Nolan Rappaport, opinion contributor

The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States.

 

This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.

 

What is the administration doing to reduce the backlog?

 

Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.

 

According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.

 

Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.

 

These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.

 

The Florence Project claims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.

 

The Vera Institute of Justiceopposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”

 

In any case, it just speeds up the processing of new additions to the immigration court caseload.  It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years.

 

It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.

 

Read more at https://thehill.com/opinion/immigration/3492751-immigration-courts-are-overrun-with-cases-and-its-only-getting-worse/

 

Published originally on The Hill.

 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://nolanrappaport.blogspot.com

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

Go over to The Hill at the above link to read the complete article.

Thanks Nolan for continuing to “shine the light” on this critical issue that might appear to be “below the radar screen” but actually threatens  the stability of our entire legal system!⚖️

As I’ve said many times, Aimless Docket Reshuffling (“ADR”), engaged in to some extent by Administrations of both parties, is NOT the answer. It’s a huge part of the problem!

🇺🇸Due Process Forever!

PWS

05-21-22

💤😴GARLAND DOZES AS COURTS CRUMBLE!☠️

Rip Van Winkle
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”
Scott Bixby
Scott Bixby
National Reporter
The Daily Beast

 

 

https://www.thedailybeast.com/fatally-flawed-immigration-court-system-should-be-taken-out-of-its-misery

Scott Bixby reports for The Daily Beast:

As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.

But breaking the system might be the only way to save it.

On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”

But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.

“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”

One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”

“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”

Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.

“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.

“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”

With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.

That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.

The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.

But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.

“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”

….

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

Read Scott’s full article at the link.

One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.

White Nationalists Jeff  “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog. 

As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!

While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!

But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.

One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges! It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster. 

What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.

Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.

Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!

There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!

There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!

A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.

Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as his  broken “court” system veers off the road and goes down the embankment.

It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.

But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.

🇺🇸Due Process Forever!

PWS

04-14-22

🤯“MAINSTREAM MEDIA” FINALLY CATCHES UP WITH “COURTSIDE” — Trump’s Evil Cruelty, Biden’s “Slows” Combine To Shaft Ukrainians, Russians, Other Refugees, While Failing Our Allies! — It’s An Inexcusable Mess, Just As Many Of Us Predicted!☠️🤮

Screwed
“Screwed”
By Pearson Scott Foresman
Public Domain

By Paul Wickham Schmidt

Courtside Special Report

March 18, 2022

For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents. 

DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!

Stephen Miller Monster
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance. 

The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!

Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!

There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!

Alfred E. Neumann
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers!
PHOTO: Wikipedia Commons

The WashPost finally “gets” it:

https://www.washingtonpost.com/opinions/2022/03/16/united-states-open-doors-ukraine-refugees/

The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

So does Catherine Rampell, writing in WashPost:

https://www.washingtonpost.com/opinions/2022/03/17/ukrainians-are-suffering-consequences-of-our-broken-immigration-system/

Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.

I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:

 

Deepa Fernandes
Deepa Fernandes
Immigration Reporter
SF Chronicle
PHOTO: SF Chron

https://www.sfchronicle.com/us-world/article/They-protested-Putin-and-fled-their-country-Now-17010445.php

On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.

“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.

Come on, man! You’ve got to be kidding me!

Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according to Alexandra Meeks over at CNN:

Alexandra Meeks
ALexandra Meeks
Current News Reporter
CNN
PHOTO: Linkedin

 

 

\

 

 

 

https://e.newsletters.cnn.com/click?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

The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.

But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.

And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation. 

Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!” 

It’s not “rocket science.” 🚀 Not by a long shot!

No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”

And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/. 

Toddler
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly!
PHOTO: Sean Choe, Creative Commons License

Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!

I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty. 

It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks  — personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡

Amateur Night
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional.
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮

🇺🇸Due Process Forever!

PWS

03-18-22

THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

PRACTICE ALERTS

 

Mandatory E-Filing with EOIR Is Now in Effect

Efiling is not permitted for cases with a preexisting paper file, but all new cases moving forward require efiling with ECAS.

Once a case is fully ECAS, you do not need to serve ICE separately. However, you still need to submit a certificate of service that lists ECAS as the means of service. eService/mail can still be used on paper files. eService is the only method of filing for PD requests.

Also, EOIR apparently has not come up with a system for filing motions to substitute counsel in ECAS. The system physically will not let you file a new primary E-28 if there already is an attorney, and you cannot file a motion without an E-28. The workaround so far has been to file a non-primary E-28 and then to ask the court to change it to primary. Hopefully, EOIR will fix this soon.

 

Updated Legal Assistant Directories for NYC (attached)

 

NEWS

 

U.S. to try house arrest for immigrants as alternative to detention

Reuters: The Biden administration will place hundreds of migrants caught at the U.S.-Mexico border on house arrest in the coming weeks as it seeks cheaper alternatives to immigration detention, according to a notice to lawmakers and a U.S. Department of Homeland Security (DHS) official. A 120-day pilot program will be launched in Houston and Baltimore, with 100-200 single adults enrolled in each location, according to the notice, which was sent by U.S. Immigration and Customs Enforcement (ICE) and reviewed by Reuters. See also Immigrant Rights Organizations Call on Biden to Stop Expansion of Surveillance and End the Immigration Detention System as a Whole.

 

The Continuing Impact of The Pandemic on Immigration Court Case Completions

TRAC: As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.

 

Nationwide Labor Pause Planned In ‘Day Without Immigrants’ Protest

LAA Weekly: Valentine’s Day has been strategically selected for the “Day Without Immigrants” protest, as it is a day where an abundance of consumer spending occurs, through labor that is often carried out by immigrants.

 

Quick Fix to Help Overwhelmed Border Officials Has Left Migrants in Limbo

NYT: These migrants were instructed to register with Immigrations and Customs Enforcement within 60 days to complete the process the border officials started. But in some parts of the country, local ICE offices were overwhelmed and unable to give them appointments. So the Haitian family and other new arrivals have spent months trying in vain to check in with ICE and initiate their court cases.

 

US citizenship agency reverts to welcoming mission statement

AP: The new statement unveiled Wednesday by Citizenship and Immigration Services Director Ur Jaddou is symbolic but somewhat restores previous language after the agency removed a reference in 2018 to the U.S. being a “nation of immigrants.”

 

Salvadoran Denied Naturalization Over Pot Dispensary Job

Law360: A Washington federal judge has ruled that a Salvadoran citizen’s U.S. naturalization application was properly denied because of her admission that she distributes marijuana as co-owner of a state-licensed dispensary.

 

EOIR Apologizes After Asking Atty To Delete Tweets

Law360: The U.S. Department of Justice’s Executive Office for Immigration Review apologized on Tuesday to an attorney after asking her to delete tweets about immigration court hearings for people enrolled in the controversial “Remain in Mexico” program.

 

Undocumented parents have weathered a pandemic with no safety net

WaPo: A patchwork of federal aid kept many families afloat during the pandemic, but families with undocumented parents did not qualify for most of it, including unemployment insurance, the stimulus payments, Medicaid and food stamps.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AO issues NOID for Afghan Who Worked for U.S.

Boston AO: A NOID from the asylum office stated that an individual who worked for the U.S. government as a mechanic had not demonstrated a fear of future persecution based on his imputed political opinion. The AO held there was insufficient evidence the Taliban was or would become aware of his imputed political option. The AO also stated the Taliban does not have the capability to persecute all former employees of the U.S. and the applicant had not demonstrated similarly situated people were being targeted. Counsel has submitted a detailed rebuttal with testimony from a US military official, and the applicant’s mother was granted asylum by a different officer.

 

District Court Vacates Two Trump Administration Asylum EAD Rules

AILA: A federal district court vacated the final rules “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” and “Asylum Application, Interview, and Employment Authorization for Applicants.” (AsylumWorks v. Mayorkas, 2/7/22)

 

Lawsuit against the BIA Levels the Legal Playing Field for Immigrant Advocates

NYLAG: Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October 2022 and will be phased in over several years.

 

2nd Circ. Says BIA Undercuts Precedent In Asylum Case

Law360: The Second Circuit on Wednesday granted a Nigerian man’s petition for review of a Board of Immigration Appeals order that denied him asylum, finding that the agency made several legal and procedural errors and did not adequately explain its reasons.

 

3rd Circ. Says Nigerian Paroled Into US Wasn’t ‘Admitted’

Law360: The federal government properly charged a Nigerian man as inadmissible to the U.S. rather than removable, because his entry to the country on parole constituted an arrival despite his previous admission, the Third Circuit ruled Friday.

 

CA6 on U Visa Waitlisting: Barrios Garcia v. DHS

Lexis: We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed pre-waitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist.

 

9th Circ. Finds Part Of Immigration Law Unconstitutional

Law360: The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment.

 

9th Circ. Rejects Mexican Kidnapping Victim’s Protection Bid

Law360: The Board of Immigration Appeals need only to consider the possibility — not the reasonableness — of an immigrant’s safe relocation back to their home region when weighing protections under the Convention Against Torture, the Ninth Circuit ruled Wednesday.

 

USCIS, Immigrants Get Approval To Bar Juvenile Policy In NJ

Law360: A New Jersey federal judge signed off Wednesday on a class action settlement that would prevent the U.S. Citizenship and Immigration Services from refusing to place young immigrants on the path to a green card based on Garden State family court findings.

 

Foreign Spouses May Work With Feds’ Approval At Border

Law360: U.S. Customs and Border Protection is marking the entry records of certain foreign executives’ spouses to show that they are immediately eligible to work in the U.S. without going through the monthslong process of obtaining a work permit.

 

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

 

EOIR Clarifies Alternative Filing Locations

AILA: EOIR updated its Operation Status website with information clarifying that alternate filing locations are designated for the purpose of filing emergency motions and explaining how it will treat other filings if a court is closed.

 

USCIS Issues Updated Policy Guidance Addressing VAWA Petitions

AILA: USCIS updated policy guidance addressing VAWA petitions, specifically changing the interpretation of the requirement for shared residence. The guidance also affects use of INA 204(a)(2), implements the decisions in Da Silva v. Attorney General and Arguijo v. United States, and more.

 

DHS and VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Their Families

AILA: DHS, in partnership with the Department of Veterans Affairs and Defense, launched an online center to consolidate resources for noncitizen service members, veterans, and their families, including a request form for current or former service members seeking return to the U.S. after deportation.

 

USCIS Updates Policy Guidance on VAWA Self-Petitions

USCIS: We are updating our interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.

We are also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, February 14, 2022

Sunday, February 13, 2022

Saturday, February 12, 2022

Friday, February 11, 2022

Thursday, February 10, 2022

Wednesday, February 9, 2022

Tuesday, February 8, 2022

Monday, February 7, 2022

 

 

 

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After two plus decades of largely wasted time, effort, and resources, EOIR finally moves into the era of E-Filing! 

Elizabeth notes one of the “initial workarounds” for motions to substitute counsel. While early glitches are to be expected in any system, this one seems odd because: 1) the system has supposedly been extensively “beta tested;” and 2) motions to substitute counsel have to be one of the most common motions filed at EOIR (particularly with cases often taking many years to complete with the ever-growing 1.6 million case backlog.)

I’d be interested in getting any “practitioner feedback” on how this system (applicable only to newly filed NTAs) is working out for them. You can just put in the “comments box” for this post.

Speaking of backlog, this excellent recent study and analysis from CMS (under “Friday Feb. 11” above) certainly suggests that the majority of the “aged cases” being “warehoused” by Garland’s EOIR relate to law-abiding long-term residents who are already firmly grounded in our society and should be prime candidates for “non-priority” status and removal from the dockets. 

Undocumented immigrants contribute to every aspect of the nation’s life.16 During the COVID-19 pandemic, the case for legalization has become increasingly evident to the public and policymakers due, in part, to the fact that a remarkable 74 percent of the nation’s 7.3 million undocumented workers meet DHS’s definition of essential workers (Kerwin and Warren 2020). As the nation ages and its population over age 65 exceeds that under age 15 (Chamie 2021), the need for immigrant workers will only increase. US fertility rates fell for five consecutive years prior to the COVID-19 pandemic, and the US birth rate decreased by four percent in 2020 (Barroso 2021).17

Legalization programs benefit the larger society: they “raise wages, increase consumption, create jobs, and generate additional tax revenue” (Hinojosa-Ojeda 2012, 191).18 One study has estimated that broad immigration reform legislation, including a legalization program and a flexible, rights-respecting, legal immigration system, would add $1.5 trillion to the US gross domestic product over 10 years (ibid., 176). Another study found that a legalization program would increase the productivity, earnings, and taxes paid by the legalized, resulting in increased contributions to the Social Security (SS) program, which would more than offset the SS benefits that they would receive (Kugler, Lynch and Oakford 2013).

Indeed, the data in the CMS study confirms what many of us have suspected for a long time: That deportation of many of the individuals now occupying the Immigration Court’s mind-boggling docket backlog actually would be a counterproductive “net loss” for the U.S.!

So, why are Garland and Mayorkas letting the backlog fester and ooze disorder and injustice? ☠️ Rather than using largely self-created backlogs to support more “enforcement gimmicks” purporting to lead to the forced removal of many productive members of our society, EOIR is long overdue for some form of the “Chen Markowitz Plan” in anticipation of the types of ameliorative legislation outlined in the CMS study.  

Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Populations Eligible for Special Legal Status Programs and for Legalization under Pending Bills by Donald Kerwin, José Pacas, Robert Warren

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

Donald M. Kerwin
Donald M. Kerwin
Executive Director
Center for Migration Studies — He and his friends at CMS have some great ideas on immigration and human rights backed by some of the best scholarship around! Why are Garland, Mayorkas, and others “tuning them out” while they continue to bungle immigration policy, degrade human rights, and undermine our legal system?

Garland’s disgraceful failure to put a “Progressive A-Team” in charge at EOIR continues to drag down our entire justice system.

Note that Sessions and Barr had no trouble and no hesitation installing their “Miller Time” restrictionist team at DOJ and EOIR despite almost universal outrage and protests from human rights advocates, immigration experts, and some legislators! 

Why do Dems keep appointing AG’s who are too “tone deaf,” clueless, and timid to fully “leverage” the almost unlimited potential of reforming EOIR to be a font of due process, best practices, and scholarly,  efficient judging?

Why do Dems prefer the equal and racial justice “disaster zone” that they have helped to create, aided, and abetted over the past two decades of abject failure and disorder at EOIR?

There is a reason why Chair Lofgren and others on the Hill are pushing for Article I! But, that in no way diminishes or excuses the failure of Garland to make available due process and best practices reforms at EOIR, including a major shakeup of “Trump holdover” judges and managers who aren’t up to the job of running a system “laser-focused” on due process and fundamental fairness!

🇺🇸 Due Process Forever!

PWS

02-15-22

🏴‍☠️🤮👎🏽INJUSTICE IN AMERICA: TIME MAGGIE SPOTLIGHTS GARLAND’S BROKEN “COURTS,” BURGEONING BACKLOGS!

Jasmine Aguilera
Jasmine Aguilera
Staff Writer
Time Magazine
PHOTO: Twitter

Jasmine Aguilera reports for Time: 

https://time.com/6140280/immigration-court-backlog/

Roughly 1.6 million people are caught up in an ever-expanding backlog in United States immigration court, according to new data tracking cases through December 2021. Those with open immigration cases must now wait for a decision determining their legal status for an average of 58 months—nearly five years.

Though the immigration court backlog has been getting longer for more than a decade, a deluge of new cases added between October and December 2021 significantly worsened wait times, according to the Transactional Records Access Clearinghouse (TRAC), a research institution at Syracuse University that obtained the figures through Freedom of Information Act requests. The backlog increased by nearly 140,000 during that period, the fastest growth on record and the direct result of an uptick in arrests by agencies housed under the Department of Homeland Security (DHS): Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

. . . .

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

Read Jasmine’s complete article at the link!

1.6 million is just the “trip of the iceberg.” Each of those human beings potentially has family, friends, co-workers, teachers, fellow students, relatives, employers, employees, neighbors, sponsors, fellow parishioners, students, investors, etc. tied up in the trauma of their wait and the often arbitrary and capricious results once they get a final hearing. Virtually every community in America has a stake in Garland’s tragically broken “court” system.

Just applying TRAC’s math from recent studies, even in a time of inculturated anti-immigrant, anti-asylum bias and bad, skewed interpretations at EOIR, more than half of those in backlog would earn the right to stay  in America if they could get an individual hearting. But, in Garland’s broken and mis-prioritized system, “getting a merits hearing” is a “big if.” Many of those in the backlog are already doing “essential work” or have the job skills we need if their only be normalized. Garland’s failure is America’s trauma, and wasted human capital, and squandered Government resources.

 

A few other “lowlights:”

  • “Fewer than 1% of those new cases brought by ICE and CBP beginning in October 2021 involved alleged criminal activity.” So much for “new priorities.”
  • “A spokesperson for the Department of Justice’s Executive Office of Immigration Review (EOIR), which oversees the immigration court system, said courts have been relying on technology to continue operations, but blamed the on-going pandemic for the worsening backlog.” An absurdist “cop-out,” as those familiar with EOIR’s chronically bad technology and failure to adequately prepare and deal with COVID know. Poor and imperious communication with the public has also been a feature of EOIR (mis)management during the pandemic!
  • “One reason is an ever-increasing number of new immigration cases swamping the system, as both the Obama and Trump Administrations issued millions of deportation orders.” Truth is that despite DHS and EOIR attempts to shift blame to the victims, the backlog is largely self-created.
  • “But the problem cannot be solved by asking the existing immigration judges to work harder or faster, Long says.” Nor, with due respect to TRAC’s Susan Long, will it be solved by throwing more judges and resources into a biased, unfair, totally dysfunctional, anti-due-process, broken system. Fix the system first with common-sense progressive reforms, replace bad judges, hire new judges on a merit basis, with outside expert input, focusing on hiring judges with records of commitment to due process and fundamental fairness and established immigration/human rights expertise! Then, once fairness, expertise, quality, and efficiency have been established and institutionalized, decide whether the system should be expanded and, if so, how to do it. (Hint: Many experts believe that 500 completions annually is the most reasonable expectation for well-functioning, expert Immigration Judges complying with due process and “best practices.” That means the current system of approximately 560 IJ’s has a maximum capacity of 250,000 to 300,000 completions annually. DHS Enforcement must be required to work within those realistic limits in bringing new cases before the court.)
  • “While the dedicated docket was designed to address the backlog for recently-arrived families, it failed to take into account the staggering systemic failures at work, according to immigration lawyers, advocacy organizations and elected officials.” It was a “proven failure enforcement gimmick” as experts told Garland from the “git go.” A competent AG committed to due process, fundamental fairness, and the rule of law would have rejected this bad idea out of hand.
  • “There’s a long, long laundry list of things that have been tried in the past,” Long says. “It’s not going to be a quick fix.” I respectfully dissent! This isn’t rocket science! It’s a combination of cleaning out the deadwood, bringing in competence and progressive expertise in judging and administration, common sense, long overdue progressive reforms, creative thinking, appointing a BIA of expert appellate judges to issue sound legal precedents, require best practices, and hold judges, DOJ officials, and DHS personnel accountable for their often intentional undermining of justice in Immigration Court. As alluded to by Long, Garland had the incredible advantage of a laundry list of “enforcement and just pedal faster gimmicks” that are proven failures! Garland knew in advance what NOT to do and what NOT to try. He also had access to an impressive array of practical scholarship and that produced sound, straightforward recommendations on how to fix the system. He had a golden opportunity to shake up the system on “Day One,” “clean house,” and bring in the new progressive experts and dynamic leaders to fix the system. Yes, I recognize that as Long suggests, the system won’t be fixed “overnight.” But, had Garland acted promptly and timely, the system could already be showing dramatic improvements on all levels. You have to start the process of reform and improvement somewhere. Garland’s dilatory approach to EOIR has greatly increased the difficulty. But, fixing EOIR is still “low hanging fruit” for the Administration if they only had the backbone and vision to “blow up” the current failed and flailing EOIR  and bring in and empower experts to start taking names, kicking tail, and implementing due process and best practices reforms.
  • Garland apparently has operated on the false premise that fixing “Immigration Courts” isn’t a priority and that advice and assistance of progressive experts can just be “blown off” in favor of the type of politically-driven, bogus-enforcement-oriented, bureaucratic nonsense that is endemic at DOJ and DHS. Not happening! And continued aggressive litigation by the NDPA is an essential element of stopping the injustice and holding Garland and his flunkies accountable. That litigation is not going to stop either unless, and until, one way or another, Garland is forced to take notice and make the obvious progressive reforms and improvements.
Alfred E. Neumann
Garland’s management “style” and unwillingness to bring in the progressive experts necessary to radically reform EOIR has become a huge part of the problem, propelling an already broken system to new heights of dysfunction, disorder, and injustice! 
PHOTO: Wikipedia Commons

I’m no fan of Virginia’s new GOP neo-fascist Attorney General Jason Miyares. But, before the end of Inauguration Day, the heads were rolling, and his message was very clear: liberalism, environmental protection, racial justice, good government, and public health are out — far-right neo-fascism is in!  Get  with the program or get out! Republicans loved it, Dems hated it. But it happened!

By sharp contrast, Garland is still running EOIR with much of the same personnel and many of the same broken and bad policies of his predecessors, Trump, and Stephen Miller. That’s a good illustration of why “Democrats can’t govern” while Republicans constantly outflank them and dismantle the system in short order. What’s the future of a party that doesn’t recognize its own self-interest, the common good, and act and govern accordingly?   

🇺🇸Due Process Forever!

PWS

01-24-22

🤯🤑PROFILE IN FAILURE: GARLAND’S JUDGES: “AMATEUR NIGHT AT THE BIJOU” WITH AN OVERWHELMING TRUMPIAN INFLUENCE — As Experienced Immigration Judges Leave The Bench To Join The “Round Table,” ⚔️🛡 Garland Fails To Consistently Recruit & Hire Immigration/Human Rights/Due Process/Equal Justice “A-Listers” To Replace Them!

Amateur Night
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” 
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

From TRAC:

More Immigration Judges Leaving the Bench

The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.

. . . .

There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.

. . . .

Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.

. . . .

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

Read the complete report, with charts and graphs, at the above link.

It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.

This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.

Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.

Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.

Better options and plans have been out there since “before the git go.” See, e.g., https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-🚀-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?

It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!

Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.

Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!

🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!

PWS
01-20-21

CODE RED! 🆘☠️⚰️IMMIGRATION COURTS FAIL AS GARLAND FLAILS — With Human Lives In The Balance & A Catastrophic Collapse Of System On The Horizon, Garland “Rearranges The Deck Chairs On The Titanic!” — “Aimless Docket Reshuffling” is a “Clown Court Strategy” 🤡 But, It’s No Laughing Mater For The Asylum Seekers & Their Lawyers Stuck In Garland’s Dysfunctional Mess!🤮

Deepa Fernandes
Deepa Fernandes
Immigration Reporter
SF Chronicle
PHOTO: SF Chron

Deepa Fernandes reports for the SF Chron:

Waiting nine years for an asylum hearing in San Francisco https://www.sfchronicle.com/bayarea/article/An-El-Salvadoran-attorney-has-waited-five-years-16739505.php

A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.

Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.

In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.

But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.

A growing backlog

Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.

“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”

Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.

The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.

“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.

This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.

Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.

Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.

“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.

Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.

An analysis by the Migration Policy Institute shows that in 17,000 expedited docket cases under previous administrations, the majority of immigrants lacked legal representation and 80% of them were ordered removed without even being in court.

History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.

“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”

. . . .

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

Woman Tortured
“What if Garland had to hang out with us in his backlogs?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read Deepa’s full article at the link.

Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!

The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG. 

But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.

Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis. 

As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.

Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!” 

Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!

Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.

I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future! 

Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”

Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!

Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!

Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.

Ah, Yes, What Timing!

Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law

Just as I was posting this, my friend, Professor Lindsay Muir Harris at UDC Law published what I call the “Practical Scholars Compendium” to the missed opportunities that Garland and other members of “Biden’s Gang With Neither Vision Nor Moral Courage” have been compiling, as documented on Courtside and other blogs! See https://lawprofessors.typepad.com/immigration/2022/01/immigration-article-of-the-day-asylum-under-attack-by-lindsay-harris.html

Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.

Kit Johnson
Better choices for the now-broken and regressive Immigration Judiciary are out there? Why hasn’t Garland tapped them? Kit Johnson
Associate Professor of Law
University of Oklahoma Law School

Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.

Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.

Star Chamber Justice
”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice”
Star Chamber
Style

Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.

It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

PWS

01-02-22

🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!

Dan Kowalski reports for LexisNexis Immigration Community:

 https://www.ca5.uscourts.gov/opinions/pub/19/19-60807-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-cat-remand-abushagif-v-garland#

Abushagif v. Garland

“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”

[Hats off to pro bono publico counsel Alison Caditz and Jeri Leigh Miller!]

pastedGraphic.png pastedGraphic_1.png

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.

“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”

The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.

Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!

Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:

While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal

Country Reports on Human Rights Practices for 2020

United States Department of State • Bureau of Democracy, Human Rights and Labor

LIBYA 7

facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.

Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.

Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist! 

One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!

How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!

Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!

Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!

The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.  

This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.

Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place. 

This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts of  pro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!

Torture
Garland indifferent to wrong torture decisions from BIA?
Photo by David R. Badger, Creative Commons

I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).

Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, and many public speaking, writing, and other public information and educational functions. 

While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.

It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!

Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮

🇺🇸Due Process Forever!

PWS

09-26-21

⚖️OLD NEWS FOR “COURTSIDERS” — Garland Names Former BIA Chair & Chief IJ Hon. David L. Neal As New EOIR Director! — Can He Fix America’s Most Dysfunctional Court System?

Hon. David. L. Neal
Hon. David L. Neal
Director
Executive Office For Immigration Review
USDOJ
PHOTO: C-SPAN

https://www.justice.gov/eoir/pr/attorney-general-merrick-b-garland-announces-appointment-david-neal-director-executive

Department of Justice
Executive Office for Immigration Review

FOR IMMEDIATE RELEASE
Friday, September 24, 2021

Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review

WASHINGTON – Attorney General Merrick B. Garland today announced the appointment of David L. Neal as the Director of the Executive Office for Immigration Review (EOIR) at the Department of Justice.

“The Justice Department’s commitment to a fair and efficient immigration court system, governed by due process and the rule of law, is exemplified by recent policy changes and our pursuit of significant additional resources,” said Attorney General Garland. “David Neal brings invaluable experience that will help further EOIR’s mission.”

The EOIR director is responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer and all agency personnel. EOIR has more than 2,300 employees in its 69 immigration courts nationwide, at the BIA and at EOIR headquarters in Falls Church, Virginia. As provided in the President’s Budget Request for FY 22, EOIR anticipates increasing its immigration judge corps from 535 today to 734 by the end of the next fiscal year.

Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations. Mr. Neal served in multiple other capacities at EOIR, including as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge and Assistant to the Director.

Prior to his tenure with EOIR, Mr. Neal served in the U.S. Senate Judiciary Committee as chief counsel of the Subcommittee on Immigration. Mr. Neal began his legal career as the Director of Policy Analysis at the American Immigration Lawyers Association and also worked for a law firm in Los Angeles, representing immigration cases before the former Immigration and Naturalization Service, the State Department, the Department of Labor and EOIR.

Mr. Neal received his Bachelor of Arts from Wabash College in Crawfordsville, Indiana, Master of Divinity from Harvard University’s School of Divinity and his Juris Doctor from Columbia Law School. Mr. Neal is a member of the District of Columbia and New York bars.

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David thus becomes the first EOIR Director to have served as both BIA Chair and Chief Immigration Judge, as well as briefly as an Immigration Judge.

Congratulations and good luck to David in his new position! It’s going to take a monumental effort, extraordinary management ability, creativity, and lots courage and determined due-process-best-practices-oriented leadership to straighten out the godawful legal, professional, and administrative mess in America’s most unfair and dysfunctional court system, now running a largely self-created 1.4 million case backlog.

Will he be able to hold off the politicos at DOJ and finally put an end to the DOJ-generated “Aimless Docket Reshuffling” (“ADR”) that has been the major cause of the 1.4 million case backlog at EOIR that has gown up over the last two decades of mismanagement at DOJ and EOIR? Will he be able to end the reprehensible officially-sanctioned “victim shaming” and cowardly “blame shifting” that has been heaped by the DOJ and EOIR on those suffering from its defective administrative practices over the past two decades?

If, as Garland claims, 200 new Immigration Judge positions will be added by the end of FY 2022, will David be able to institute merit-based Immigration Judge hiring that 1) involves public input from those who actually practice before the Immigration Courts, e.g., the private bar; 2) gives appropriate credit to “practical scholars” in immigration, human rights, and civil rights with clearly-established records of independent thinking and unswerving commitment to due process for individuals; 3) appropriately honors and weighs experience gained actually representing individuals, particularly asylum seekers, in Immigration Court, and 4) removes demeaning “production quotas,” limitations on docket management, and unnecessary restrictions on public scholarship, writing, and teaching which have made the job intentionally unattractive to many of the “best and brightest” progressive candidates from the private immigration and human rights sector. Will he actually go out and actively recruit a broader, more diverse, and more representative candidate base for IJ hiring, rather than using “insider procedures” that don’t reach or encourage many of the best candidates for these important jobs?

HINT: More “gimmicks,” like “dedicated dockets,” continued “Mickey Mouse”  🐭 uber enforcement “production quotas,” and appointments of judges who have never represented an individual in Immigration Court won’t do the trick! That is being proved every single day, beyond any reasonable doubt!

Nor will being at war with the National Association of Immigration Judges (“NAIJ”) and their leadership further due process. NAIJ leaders are the only ones at EOIR who have been providing meaningful professional training over the past four years of darkness and ignorance at EOIR.

They, along with the Private/NGO/Clinical Bar and OPLA Assistant Chief Counsel have the best and most practical ideas on how to fix EOIR! David would be wise to give them all “seats at his table,” and listen carefully to their views, rather than attempting to “lock them in a dark cellar,” as was the practice of the Trump immigration kakistocracy that effectively destroyed EOIR!

Since “built to fail” enforcement-generated non-solutions are the things EOIR appears “wedded to,” David is going to have to persuade Garland and his lieutenants to radically change course. Can he get them to treat Immigration Courts as “real courts,” controlling the lives of “real human beings,” folks like you and me, in dire need of real judicial administration and real progressive expert judges, to get out of EOIR’s current “death spiral.”☠️ Or, will we see a continuation of “Dred Scottification” of women and people of color, along with substandard trial judging, defective appellate review, and lousy biased precedents that end up creating more problems than they solve? 🤮 Only time will tell!

🇺🇸Due Process Forever!

PWS

09-24-21

🤡(NO) SURPRISE! — “Backlog Meisters” @ Garland’s EOIR Bobbling His Latest “Gimmick” — Dedicated Dockets — IJ in Boston Now Has More Than 6,800 Cases On Docket (nearly 10 yr. supply @ 700 annually) — 129 Case “Master” On The Docket, Per Latest TRAC Report!

EOIR Adrift
Adrift on a sea of endless incompetence, Garland’s “Dedicated Dockets” won’t save EOIR!
U.S. Coast Guard photo by Petty Officer 1st Class Sara Francis
Public Realm
Transactional Records Access Clearinghouse

Immigration Court Struggling to Manage Its Expanding Dedicated Docket of Asylum-Seeking Families

During the month of August, the Biden administration stepped up the assignment of asylum-seeking families arriving at the border to the Immigration Court’s new “Dedicated Docket” program. As of August 31, 2021, Immigration Court records indicate that a total of 16,713 individuals comprising approximately 6,000 families are now assigned to this program.

But alongside the growing number of asylum-seekers assigned to the new Dedicated Docket, new questions emerge about whether these cases will be completed fairly and within the promised timeline, whether Immigration Judges will be able to manage large Dedicated Docket caseloads, and whether the Court is reliably tracking these cases as promised.

While EOIR has set up Dedicated Docket hearing locations in eleven cities, cases assigned thus far have been unusually concentrated in just a few cities. As of the end of August half of the 16,713 cases were assigned to New York City and Boston.

With the rapid influx of cases at a number of these Dedicated Docket hearing locations, half of the currently scheduled initial master hearings are not being held until after mid-November 2021, and fully one in ten are not currently scheduled until mid-February 2022. In addition, these hearings are largely to be held via video. Only eleven percent of all scheduled hearings are set as in-person hearings.

It also continues to be a relatively small number of judges who are assigned to hear these cases. Six judges now account for nearly two-thirds (63%) of the assigned Dedicated Docket cases. Each of these six judges has already been assigned over a thousand cases just during the first three months of this initiative. Judge Mario J. Sturla in Boston has thus far been assigned the most Dedicated Docket cases for any judge—3,178 cases.

Some basic arrangements are still not in place to ensure that cases assigned to the Dedicated Docket are clearly identified in the Court’s database system which is relied on to manage the Court’s workload. As of the end of August, fully 38 percent of cases assigned to the special hearing locations set up to exclusively handle Dedicated Dockets were not flagged as “DD” cases.

To read the full report, go to:

https://trac.syr.edu/immigration/reports/660/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through August 2021, use TRAC’s Immigration Court tools here:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

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TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors 

Transactional Records Access Clearinghouse 

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I’m not aware of any “courtroom” at EOIR that actually could hold 129 respondents, their family members, and attorneys (if any). It’s a high volume court with a “mini-court” infrastructure. Our Masters were shut down several times by the Arlington Fire Department for unsafe conditions and blocking handicapped access.

Also, building new “gimmick dockets” without e-filing is totally insane!

I once did a 100-case TV Master in Cincinnati. I had no files! ICE sent their files to Cleveland while sending the Assistant Chief Counsel to appear in person in Cincinnati. They probably crossed “in transit.” EOIR provided a Spanish interpreter. However most of the non-English speakers on the docket were from Mauritania and spoke French or Wolof. It was a complete circus.

Afterwards, I told the then Chief Immigration Judge that it was “friggin’ Clown Court!” He was not amused. Nor was I! 

Probably not a “career enhancing” move, but I was “working my way down the ladder” by that time.

Creating more unnecessary “gimmick dockets” at EOIR — just like hiring more new IJs, is NOT going to solve the extreme structural, organizational, personnel, and competence issues infecting the Immigration Courts. Actually, if anyone had bothered to check, “dedicated dockets” were tried during the Obama Administration. They inevitably failed — adding to the “Aimless Docket Reshuffling” while undermining due process, efficiency, and best practices!

It’s not “rocket science.” 🚀 Anybody who actually practices (as best they can, under these near-impossible circumstances) in Immigration Court these days could tell Garland exactly what the problems are.

Nobody in their right mind would suggest that the “answer” is a “Dedicated Docket” or infusing a large number of additional judges into this mess, although the solution definitely involves replacing some existing judges, starting with the BIA, and includes bringing in real progressive, expert judicial leadership. So, why is Garland rolling out more gimmicks and proposed personnel increases without addressing the REAL problems at EOIR?

Fix the system! Bring in expert progressive judges who know the law and are committed to best practices! Stop the politicized interference! Figure out what the real system requirements are! THEN go out and do additional merit-based hiring, if more judges are really part of the answer! (Hint: The vast majority of the 2+-year-old non-detained, non-priority cases should be administratively closed or referred to USCIS, or both. They are bogging down the system without promoting justice.)

Alas, poor EOIR seems to be adrift on a sea of endless incompetence, mismanagement, and neglect with no safe port in sight.

🇺🇸Due Process Forever!

PWS

09-14-21

👎🏽🤮EOIR DENIES DUE PROCESS, AGAIN! — Proper Notice Is “Of Signal Importance” For Due Process In Our Justice System — Except For Those In Immigration Court Where You Have To Litigate To The Circuit To Get Basic Rights Guaranteed To All! — This Is What “Dred Scottification” & “Systematic De-Personification” In A Totally Dysfunctional Outlaw Tribunal Looks Like! — Meet NDPA “Rising Star” Karen S. Monrreal, Esq., Who “Bested” Garland’s DOJ In Flores-Rodriguez v. Garland (9th Cir.)!

 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports in LexisNexis Immigration Community: 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-due-process-flores-rodriguez-v-garland

CA9 on Due Process: Flores-Rodriguez v. Garland

Flores-Rodriguez v. Garland

“The IJ’s failure to put Flores-Rodriguez on notice of this central issue in his case denied him “a full and fair hearing” by preventing him from submitting significant testimony and other evidence. Colmenar, 210 F.3d at 971. Because the IJ’s conduct potentially affected the outcome of the proceedings, Flores-Rodriguez has also suffered prejudice. Id. For these reasons, a due process violation warranting reversal has occurred. We express no opinion whether, if Flores-Rodriguez had received notice and defended against the claim that he had made false claims of citizenship, he would have likely prevailed or to the contrary been held inadmissible. But what is of signal importance in our system of justice is that when a person is charged with a crime or charged with allegations warranting removal from the country, that person is fairly entitled to notice of the claims against him and an opportunity to be heard in opposition. Because that opportunity was not given here, we grant the petition and remand to the BIA with instructions that it hold whatever future proceedings are necessary to ensure due process is given to Flores-Rodriguez before decision is made. PETITION FOR REVIEW GRANTED.”

[Hats off to Karen S. Monrreal!]

Karen S. Monrreal, Esquire
Karen S. Monrreal, Esquire
Reno, NV

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Many, many congrats Karen! You are quickly establishing yourself as a “fearless warrior queen” of the NDPA. 🛡⚔️ Looking forward to a time when you and others like you will take your places on the Immigration Court and other Federal Benches. That will bring some much needed, and obviously now missing, expertise, courage, humanity, practicality, and diversity to our Federal Judicial system that is stale, out of step, non-representative of our diverse nation, and floundering from top to bottom, even as the future of our democracy remains in peril.

Here’s an inspiring video about Karen and how and why she became an immigration attorney:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjisfnSorjyAhXMneAKHVkYAqMQwqsBegQIFxAB&url=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3D8CMfnvxMaKk&usg=AOvVaw3jOePmv5PGtnWvd2TeEB3M

Thanks for being such a great role model, Karen, for the “new generation” of the NDPA! And believe me, those of us in the “Over the Hill Brigade” of the NDPA are out there recruiting all the time!

Wow! Providing due process before making a final decision! What a radical concept! Clearly at odds with the Sessions/Barr emphasis on prejudging cases in favor of ICE enforcement and against individuals and their “dirty lawyers” out to “game” the system. That’s what the “rote form denial orders” that Sessions and Barr encouraged to generate more removals are all about! No need to know much about the law or the facts of the case. Just fill in the blanks and check “denied” and “removed!”

It’s telling, however, that even with a massive increase in judges, these “corner cutting restrictionist gimmicks” astronomically increased an already out of control backlog of cases, even while denying fair hearings to thousands! Seven months into the Biden Administration (which has the remarkable benefit of numerous “expert action plans” for reducing backlog without denying due process), that backlog continues to grow with no apparent plan for controlling it.

🔌 How many “Team Garland” Senior Officials does it take to pull this at EOIR?

Will Garland ever “pull the plug” on this parody of a “court” that keeps “blowing the basics” with human lives and futures at stake? Not very surprising when expertise is “optional” and due process takes a back seat to “cranking out removal orders” and meeting clearly unethical, due-process-denying “quotas.” Also, it’s one where a bureaucratic judicial selection process designed by the last Administration to “dumb down” and “bias out” the Immigration Courts in favor of DHS Enforcement is still in use!

One can imagine a court system where repeated significant due process violations, questionable ethics, continuing substandard legal performance, disturbing lack of subject matter expertise, grotesque inconsistencies, and statistically inexplicable patterns of anti-individual decision-making would raise some “red flags” among peers and those charged with maintaining professional standards. These days, however, it appears that only failure to meet “production quotas” or actually taking extra time to get decisions right can get an EOIR judge in hot water. 

Gotta wonder what Judge Garland would have thought if one of his Article III colleagues produced “garbage work” like this on, say, a routine Federal Tort Claims case? He probably would have been pretty upset and acted accordingly. 

But, where it’s only people’s lives and futures at stake — “the loss of everything that makes life worth living” as famously stated by the Supremes of yore — anything seems “good enough for government work” in Garland’s malfunctioning, yet deadly and inefficient, “clown courts.” 🤡 (NOTE: With a sense of false optimism, I had hoped to put the poor “EOIR Clown Emoji” — forced to work extreme overtime during the Trump Kakistocracy — out to rest. But, alas, Garland’s failure to take the lives and rights of migrants, not to mention the health, welfare, and sanity of my litigating colleagues, seriously, and his inability to connect the dots between officially-sanctioned injustice @ EOIR and injustice throughout our society, has forced him back into duty!)

I must admit that I don’t “get it” as to why Garland thinks this is acceptable performance by a public agency and fails to take the obvious steps to end to this ongoing disgrace that ruins human lives, frustrates hard-working private lawyers trying to do their jobs (actually the only folks, in addition to some in the NAIJ, keeping this sinking boat afloat right now), and undermines our entire justice system! It also diminishes his own reputation, stature, and legacy.

Many of us understand that the Biden Administration can never attain racial justice in America as long as racially charged injustice, lack of due process, and bad judging prevails in our Immigration Courts. Tragic that those in charge haven’t achieved that same level of enlightenment, understanding, and urgency! Delay in making long overdue progressive reforms and personnel changes costs lives, squanders resources, and further undermines our democracy!

🇺🇸Due Process Forever!

PWS

08-17-21