"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
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 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:
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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.
PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.
Opinion by Judge Watford; Dissent by Judge Callahan
* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.
STAFF SUMMARY:
Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).
The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
DIAZ-RODRIGUEZ V. GARLAND 3
both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.
Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.
Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child
4 DIAZ-RODRIGUEZ V. GARLAND
abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.
Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).
Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.
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Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.
Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.
Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.
It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.
While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!
At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”
“Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!” https://www.flickr.com/photos/rasputin243/ Creative Commons License.
“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”
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As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!
It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.
Talk about a defective system that should have been changed ages ago! But, that’s EOIR!And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!
Here’s my favorite quote from Judge Krause’s opinion:
Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).
Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):
Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):
CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined
I respectfully concur in part and dissent in part.
I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.
However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.
Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.
The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.
The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.
In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.
“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.
Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!
EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.
Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.
Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.
Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!
Torture? What torture? It’s merely “enhanced fact-finding!”
Public realm“They all want to voluntarily waive further hearings and take final orders!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.
The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.
Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”
To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.
After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.
In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”
You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.
Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.
Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)
“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.
. . . ,.
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Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial(and too often wrong) decisions!
During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!
“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA.
Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?
Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.
Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!
Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong.
Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.
These two op-eds make compelling cases for the 5th Circuit rivaling the Supremes as the most scofflaw, out of control, and dangerous court in America! But, hey, is there a “dark horse” in this righty “race to the bottom?” 🐴 (Curiously enough, “owned” and “trained” by Biden-Garland Stables!)
First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:
Professor Geoffrey Hoffman Immigraton Clinic Director University of Houston Law Center
CAT a “dead letter” in the Fifth Circuit? I respectfully dissent
By Geoffrey A. Hoffman
This week a panel of the Fifth Circuit issued Tabora Gutierrez v. Garland, interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).
In this piece, I want to consider this dire prognostication and also think about what it may mean for future practice – at least for those of us in the Fifth Circuit.
Two panel members found that petitioner failed a key requirement for relief: that the government in Honduras “consented or acquiesced” to the torture. In dissent, Judge W. Eugene Davis remarked, “I agree with the IJ, the BIA, and the majority that [petitioner] will likely be tortured by MS-13 gang members. . .[but] I read the record to compel a conclusion that the torture will be with the acquiescence of a public official.” According to Judge Davis, the majority raised the bar so high regarding this requirement under CAT that “for most if not all” people CAT will be out of reach, if they are from countries with (merely) corrupt policy or police without the will or courage to protect them from brutal gangs. While I agree with Judge Davis, the fact is CAT need not be a “dead letter” in the Fifth Circuit.
I was moved to comment on another split panel decision previously in the Fifth Circuit in Inestroza-Antonelli v. Barr, see my prior post here, and I am similarly moved to write about this present decision.
Significantly, the majority here carefully acknowledges up front that the BIA and IJ below found petitioner “likely to be tortured or killed” if returned to Honduras, and even catalogued the horrible injuries he had already suffered, mentioning “gruesome photos” that are part of the record in the case.
Because I think the majority erred, and would agree with most of what the dissenting judge says, let me address three issues where I think the majority got it wrong: (1) what it means for a record to “compel” a different conclusion on appeal; (2) what it means for a government to consent or acquiesce to torture and (3) the notion that Petitioner waived his argument about the correct standard of review merely by failing to bring it up in a motion to reconsider.
I address all three of these points below.
First, the majority importantly conceded in its opinion that the police “failed to investigate” petitioner’s injuries. However, because the Board and IJ interpreted these “failures” of the police as “better explained” by the fact the petitioner “was unable to disclose the specific identity of any of his attackers” this showed the police did not “willfully ignore” the attacks. The majority reasoned that the “evidence” did not “compel” a contrary conclusion and therefore the IJ’s findings, adopted by the BIA, were considered “conclusive.”
I am struck here by the notion that just because the BIA and IJ had inserted their own explanations for the unrebutted record evidence showing lack of any police action that this must have meant (according to the majority) that the appellate court was constrained to accept this explanation and would not disturb the lower tribunal’s interpretation of the evidence.
Such a reading of the word “compel” means that judges can have an “out” anytime they want to rubber stamp any decision of the Board, all they have to do is say the explanation offered characterizing the evidence in one way or another was good enough and must not be disturbed. But this is a very troubling proposition.
Take, for example, the present case where the supposition on the part of the BIA and IJ was that the petitioner was somehow at fault for not being able to identify his attackers by name. Think about that for a minute…Police are not acquiescing and not at fault and should not be held to have “turned a blind eye” because the victim was unable to identify his attackers.
But this does not make sense.
Such a blame-the-victim mentality goes against the motivation and underlying rationale behind other federal types of relief immigrants have available, for example, U visas for crime victims, VAWA, T visas, etc., premised in many cases on the victim’s cooperation with law enforcement and their investigation. Just because a victim does not know the exact identities of their attackers does not disqualify them from relief. Would that be a reasonable interpretation for example of the U visa statute and attendant regulations?
In addition, let’s consider the use of the “compel” standard for a minute and where it came from exactly. This standard, as acknowledged by the majority, comes from a previous case, Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006), among other cases. Chen in turn cites 8 USC 1252(b)(4)(B) and emanates from the Supreme Court’s famous decision, INS v. Elias-Zacarias, 502 U.S. 478 (1992), authored by Justice Scalia.
Chen was a case about a Chinese petitioner who converted to Christianity after entry into the U.S. and so her applications did not rely on past persecution but a well-founded fear of future persecution based on religion. The IJ in the former case found that there were “many Christians in China” and that Chen’s claims of future persecution were allegedly “highly speculative.” The facts of Chen and the current case relating to police inaction in Honduras could not be further apart. Moreover, the Fifth Circuit in Chen was not considering past persecution, as here, but the more difficult to prove “future persecution” and well-founded fear standard.
Similarly, Justice Scalia in Elias-Zacarias was concerned about proof supporting a political opinion claim. In that case, the Supreme Court found that the petitioner could not produce evidence “so compelling” that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion. The “so compelling” language has been used by many courts to deny asylum on many other grounds throughout the past decades and has not been limited to political opinion claims.
But the reliance in the present case for the “compel” standard on the statute in question, 8 USC 1252(b) here is misguided. The statute states in pertinent part as follows: “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” But the “consent and acquiescence” determination under CAT is not a determination of “administrative facts” but is certainly a mixed question of law and fact. As such, the entire structure of the “compel” standard should not have been applied but instead de novo review applied.
And this brings me to the practice pointer that this case so unfortunately stands for. Although on appeal before the circuit court the issue of standard of review was raised by petitioner, it was rejected by the majority on the theory that he had to have filed a “motion to reconsider” before the Board to preserve the issue for appellate review.
This waiver argument has always seemed to me a weak and tenuous one.
For example, what if the petitioner (i.e., the respondent before the BIA) argued in his brief to the Board that the correct standard of review was de novo due to the mixed question raised by a very complicated “consent or acquiescence” determination under CAT, and courts have so held, but the BIA decided to just rubber stamp the IJ and refused to overturn the IJ’s finding based on clear error. Wouldn’t that have preserved the issue? Why is there a need for a litigant to then file a motion to reconsider after the fact to preserve an issue which had already been preserved? To make matters worse it appears Mr. Tobora Gutierrez appeared pro se, see page 3 of the Fifth Circuit majority decision, at least initially. The decision does not reveal if he had appellate counsel before the BIA. But if he did not it would be an especially onerous requirement to impose an “after the fact” requirement that a litigant must file a “motion to reconsider” to preserve an issue for appellate review, especially if he is unrepresented.
All of that said, the practice take-away here is: (1) everyone must file a very carefully drafted and thorough motion to reconsider on all issues that could be in any way (mis-)interpreted to be subject to waiver so you preserve all issues for review before the circuit courts; and (2) everyone should read Judge Davis’ cogent and reasoned dissenting opinion, which hopefully will be followed instead of the majority’s strained application of the “compel” standard. Judge Davis was right: the evidence does compel a different outcome. Judge Davis does a wonderful job also of distinguishing the prior case law in this area and showing how Mr. Tobora Gutierrez’s case is fundamentally different. As he says, “if the egregious facts of this case are not sufficient to support a finding of public-official acquiescence, CAT relief will be a dead-letter to most if not all individuals who live in countries where the police are corrupt or simply do not have the will or courage to protect them from brutal gang attacks.”
Judge Davis is right, this is a most troubling decision but not just for the reason he provides. It is troubling for the further reason that the majority applies the wrong legal standard here, the “compels” standard versus a de novo review. The majority also leaves the door open for “deferred action,” for this sympathetic and horrendous case, although it declines to recommend it. Most importantly, it also leaves the door open for de novo review, in future cases, at least where those litigants are perceived to have preserved the issue. Litigants can do this by filing a motion to reconsider with the BIA, then filing (another, second) petition for review when the motion to reconsider is denied, and then (following the procedure mandated by section 1252) consolidating the two cases.
(Institution for identification only)
Geoffrey Hoffman
Clinical Professor, UHLC Immigration Clinic Director
Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court
Opinion by Ruth Marcus
August 31 at 6:37 PM ET
The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.
The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”
How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.
One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.
These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.
Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)
The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)
In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.
But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.
. . . .
Read the rest of Ruth’s op-ed at the link.
But, the right-controlled Supremes aren’t going quietly into the night in this competition. The right to a reasoned decision from a fair and impartial decision-maker is fundamental to Constitutional due process — except at the Supremes. The righty majority now employs the “shadow docket” to avoid explanation and accountability for some of it’s most outrageously scofflaw decisions! Many of these have hurt or even killed migrants. David Leonhardt @ NY Times explains:
Davide Leonhardt Journalist NY Times PHOTO: Wikipedia
This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.
Instead, the opinion was part of something that has become known as “the shadow docket.” In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.
Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to end its eviction moratorium and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.
Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.
For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.
“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” Moira Donegan wrote in The Guardian. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”
Why the shadow docket has grown
Why have the justices expanded the shadow docket?
In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, as my colleague Charlie Savage explains. By acting quickly, the Supreme Court can retain its dominant role.
But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, has said. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”
During a House hearing on the shadow docket in February, members of both parties criticized its growth. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”
The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” writes William Baude, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”
Six vs. three
The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are often (though not always) willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.
The three Democratic-appointed justices, for their part, have grown frustrated by the trend. In her dissent this week, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In an interview with my colleague Adam Liptak last week, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”
Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.
The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.
Read more from David in “The Morning” e-mail from the NYT.
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Abrogating a treaty, intellectual dishonesty, neutering Federal statutes and regulations, scoffing at Constitutional due process, disregarding decency and human life (at least “life after birth”), AND illegally sending another human back to be tortured to death is indeed a “hard act to follow” and makes the 5th a serious contender. But, remember where this “opportunity to dump on migrants” came from!
Immigration practitioners will tell you never to underestimate the sloppiness, lack of expertise, irresponsibility, disdain for due process, and disregard for human lives that has become institutionalized at Garland’s “Miller Lite” captive appeals “court,” the BIA! And, like the Supremes and unlike the 5th Circuit, the BIA has nationwide jurisdiction and sets national precedents. But, unlike the Supremes, who decide fewer than 100 cases in an average year, the BIA assembly line charms out 20,000 to 30,000 cases annually through its defective processes, and it’s lousy, one-sided, anti-immigrant precedents and reactionary guidance that destroy thousands of lives and futures in Immigration Court every day!
So, when it comes to worst court of today, don’t count out the BIA!
Charlotte Klein Staff Writer Vanity Fair PHOTO: Twitter
The “Commanding Generals” of this effort are unprincipled, far-right GOP jurists. Their initial targeted victims are, of course, the usual vulnerable suspects: migrants, asylum seekers, women, voters of color, transgender kids, the poor, union members, etc. But, eventually, all of us who reman true to liberal democratic values will be targeted for some kind of punishment. Immigration “led the way” in the “Dred Scottfication of the other” by the Supremes at the behest of the Trump kakistocracy. But, don’t think that’s where this heinous resuscitation of one of the worst cases in American jurisprudence will end!
Meanwhile, this latest phase of the assault has unleashed the usual Dem arsenal of feckless weaponry, including:
Statements of outrage untied to realistic possibilities;
Largely meaningless public demonstrations that are “media events” and not much else;
Idle threats of reprisals;
A barrage of op-eds decrying that the fringe radical right and their relatively unpopular agenda has once again outflanked liberals who represent the views and values of the majority;
Statements of fact that have no material effect (public support for the complete elimination of abortion, al la Texas, the 5th, and the Supremes holds steady at 8%, while a large majority of Americans favor abortion in some form or another — explain how that has made a difference — also, does anybody really think that these right wingers give a fig that many women will die from illegal abortions and others will be saddled with unwanted children — the only part of human life that creates much compassion or empathy for this righty gang is that which occurs prior to birth);
Appeals to precedent, fairness, decency, reasonableness, confirmation promises, and respect for the law addressed to a party and its jurists who value none of these things if they get in the way of their authoritarian agenda.
But, Dems, here’s a better idea! For once, why not try a different approach and actually work within what you DO control and CAN change? Something that will showcase the positive attributes of honest, expert, progressive judging while developing best practices and saving lots of lives in the process. What do you have to lose, Dems? Can actually doing something to combat right-wing control of the judiciary rather than just impotently raging against it produce a worse result than you have already achieved — even when controlling the Executive, House, and Senate?
There is not much in the immediate future that Biden and the Dems can (and are willing to) do to change the composition and tenor of the Supremes and the 5th Circuit. But Biden and Garland have complete control over the “Miller Lite” BIA and the Immigration Courts!
A new, well-qualified, BIA comprised of progressive expert judges unswervingly committed to scholarship, quality, due process, respect for migrants and their attorneys, and correct results could (and should) be installed by now. But, disgracefully, it isn’t! Progressives need to hold Biden’s and Garland’s feet to the fire until they create the positive change they promised, but have not delivered!
Then, once a new BIA is in place, go to work on re-competing all Immigration Judge jobs on a merit basis, incorporating key progressive values and real-life experiences, and also involving input from practitioners and outside experts in the area. Create a better progressive Federal Immigration Judiciary and let it lead the way to restoring due process, best practices, efficiency, humanity, fundamental fairness, and integrity to our broken immigration system!
Humanity is suffering! Garland must pull the plug 🔌 on the “BIA Clown Show” 🤡 before it kills ⚰️ anyone else! Pull the BIA from the “Most Dangerous Court In America Competition” before they can “win” it. A “win” for the BIA would certainly be a “loss” for America!
Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴☠️
Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.
Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.
Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.
Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”
Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?
Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.
Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?
“We hold that B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. Those failures resulted in a muddled record and appear to have impermissibly colored the agency’s adverse credibility determination. We therefore vacate the BIA’s decisions and remand for a new hearing on the merits of B.C.’s claims. On remand, the agency must also remedy other errors B.C. has identified, which include dealing with the corroborative evidence he submitted.”
“Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to initiate removal proceedings against him, and he was in fact ordered to be removed. Singh now petitions for review of that final order of removal, arguing that the pertinent statutory provisions, by their terms, permit removal only of individuals who were “aliens” at the time of their criminal convictions, whereas he was a naturalized citizen when convicted. The government responds that we must defer to the interpretation given by the Board of Immigration Appeals (“BIA”) to those statutes and therefore must deny the petition for review. In the alternative, the government contends that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. We disagree with both of the government’s arguments and will grant Singh’s petition for review.”
Who would have thought that nearly eight months into the Biden Administration, Garland would still be living in this guy’s house and cranking out some of America’s most unabashedly horrible “jurisprudence” that actually threatens human lives! This is competence? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So many systemic problems here! So many obvious solutions! So much progressive expert talent out here who could get this system back on track and save lives in the process! So few excuses for Garland’s gross mishandling of the ongoing EOIR disaster!
The “culture of sloppiness, denial, and anti-immigrant bias” remains at EOIR almost eight months into the Biden Administration! Major personnel (new expert progressive judges committed to due process) and structural changes are necessary and long, long overdue!
The BIA needs to be replaced. Yesterday! Not rocket science! 🚀 Garland and his DOJ have no credibility whatsoever on civil rights, voting rights, or other racial justice issues as long as they run “star chambers” targeting primarily migrants of color (not to mention their long-suffering and dedicated lawyers, many acting pro bono).
“Justice” Star Chamber Style — Garland’s star chambers look and function disturbingly like those of Stephen Miller! Is this REALLY the “progressive humanitarian change” progressives voted for?
Immigrant justice IS racial justice IS equal justice for all! I’m certainly not the only person to have observed this!
⚠️WARNING TO PROGRESSIVE ADVOCATES: There can be no legitimate “asylum reform” without a strong, courageously progressive EOIR to set proper precedent, insure consistency, establish best practices, train judges and adjudicators, and police both the Immigration Courts and the Asylum Offices, including ordering corrective action to be taken in cases of those judge and officers repeatedly and demonstrably “not up to the job.” In simple terms, the culture of anti-asylum bias, racial dehumanization, and sloppy anti-immigrant decision-making that was promoted and institutionalized at EOIR under Sessions and Barr must be eradicated!
Do you seriously think that “this version” of EOIR, poorly trained, weakly staffed, and led by a BIA custom designed and packed by nativists to deny asylum and tilt in favor of DHS enforcement, will insure fairness and due process to asylum seekers in a “streamlined system?” No way!
Yet, beneath all the legal gobbledygook surrounding the proposed asylum regulation changes is the ugly reality that inflicting a “Miller-Lite” EOIR on asylum seekers and their advocates is EXACTLY what Garland and Mayorkas are absurdly proposing!
Advocates need to make their voices heard for immediate EOIR reforms from Garland and establishment of a new well-qualified, well-trained, progressive EOIR as an absolute, non-negotiable prerequisite to any more “gimmicks,” including most of the proposed asylum regulations.
As proved, beyond any reasonable doubt, day after day, Garland’s EOIR is “not quite ready for prime time” — not by a long shot! JUST SAY NO TO STREAMLINING & YET MORE “GIMMICKS” (see, e.g., “Dedicated Dockets”) WITHOUT RADICAL PROGRESSIVE EOIR REFORMS!⚖️🗽
The main problem with the current asylum system isn’t the law. It’s the unqualified folks charged with interpreting and applying it, those “defending the indefensible” (also an abuse of our legal process), and the spineless politicos unwilling to stand up for due process and the rule of law for migrants — at the border and elsewhere!
The failure of effective progressive leadership on EOIR reform at DOJ is simply appalling! And, OIL isn’t exactly covering itself in glory either! You can’t win the game without new and better players on the field. Right Casey?
“Casey Stengel might understand Judge Garland. The rest of us not so much.” Not going to win many games for humanity and the rule of law with Stephen Miller’s “nativist team” on the field. Is that fundamental truth really too deep for Garland and his “spear carriers” to grasp? PHOTO: Rudi Reit Creative Commons
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
*******************
Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
Inside the Gulag — PHOTO: Creative Commons In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color and other “undesirables” whose “crime” is to demand due process under law! How subversive!
The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.
Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?
Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!
And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!
Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!
Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!
🇺🇸Due Process Forever! The “New American Gulag,” Never!
ELIE MYSTAL, Justice Correspondent, writes in The Nation:
. . . .
The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.
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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.
The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.
And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.
Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.
But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.
Now, President Biden just needs to read it and go out and nominate 100 judges who agree.
***************
Read the full article at the link.
Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image!
Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.
For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.
One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.”
But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!
TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:
Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.
But, here are a few things that jump out for me.
No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!
CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.
Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!
Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among31 other IJs).
Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”
Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.
So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.
And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.
Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:
Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.
Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.
Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.
Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.
Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.
Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!
How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.
Other interesting information.
Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”
Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”
So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.
But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.
Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!
Here’s a key quote from Circuit Judge Kayatta’s majority opinion:
KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara (“Hernandez”), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire (“Strafford County Jail”) pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.
Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment
of the district court, arguing that the procedures employed at Hernandez’s original bond hearing comported with due process and, consequently, that the district court’s order shifting the burden of proof was error. Although we agree that the government need not prove a detainee’s flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.
. . . .
******************************
Note that the Garland GOJ continued to defend EOIR’s unconstitutional procedures. So, don’t be shocked if they ask the Supremes to intervene. And the current Supremes have too often been happy to ignore the Due Process Clause when it comes to the rights of migrants of color.
But, it’s some progress toward eventually dismantling the “New American Gulag” — the one that Biden is still running (despite campaign promises to the contrary) and that righty Federal Judges and nativist GOP AGs in the Fifth Circuit are committed to expanding!
For the NDPA, the war to save humanity never ends!
A federal judge delivered another setback to the Biden administration’s immigration agenda on Thursday, blocking a set of rules that limited who deportation agents should detain and deport from the country.
U.S. District Court Judge Drew Tipton prohibited federal officials from enforcing two directives that instructed Immigration and Customs Enforcement (ICE) agents to focus on arresting recent border-crossers, as well as immigrants deemed to threaten public safety or national security.
Under the new so-called “enforcement priorities,” ICE agents were required to obtain supervisory approval before arresting immigrants living in the U.S. without legal permission who did not fall within the three specified categories.
The memos issued in January and February are part of a broader Biden administration initiative to reshape ICE operations in the interior.
. . . .
*********************
Read the full article at the link. The case, quite aptly, is called Texas v. US!
One would like to think that this would be a “no-brainer” stay and reverse from the 5th or the Supremes. But, given the stocking of the Federal Courts by Trump & McConnell with right-wing extremist judges who have little concern with most individual Constitutional rights and who pride themselves on indifference to racism and unequal justice, I wouldn’t count on it.
However, if this outrageously wrong order stands, I would be interested to see how Tipton and his White Nationalist cabal that includes GOP reactionary AGs in Texas and Louisiana plan to micromanage DHS. Also, I figure that as the grotesque DHS abuses predictably mount, the NDPA will win some major cases from better Federal Judges in other jurisdictions that will force a showdown with Tipton and his motley crew of righty extremists.
Too bad we no longer have a functioning Congress willing to revise the immigration laws in a way that actually incorporates reality and advances our national interests.
Better Federal Judges for a better, fairer America!
Michelle Rindels & Riley Snyder report for The Nevada Independent:
A federal judge in Nevada has ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after being deported is unconstitutional, saying it was enacted with discriminatory intent against Latinos and therefore violates the Equal Protection Clause.
Judge Miranda Du issued an order on Wednesday dismissing a case against Gustavo [Carrillo]-Lopez, who was indicted last summer for being in the U.S. in spite of being deported in 1999 and 2012. It appears to be the first time a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts.
“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion,” Du wrote.
The case is a blow for the Department of Justice (DOJ), which initially filed the charge during the Trump administration — an era of hardline immigration policies — but has since switched hands to the Biden administration. Left-leaning groups have asserted that the Trump administration had “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero tolerance” immigration strategy.
Julian Castro, a former Democratic presidential candidate and secretary of the Housing and Urban Development Administration, tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”
. . . .
The order notes that the law has a disparate impact on Latinos, noting that 87 percent of people apprehended at the border in 2010 were of Mexican descent. While the federal government argued those statistics are a function of geography and Mexico’s proximity to the U.S. rather than discrimination, Du said the argument was unpersuasive.
“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.
. . . .
*************************
Read the complete article at the link,
Great decision! Notable for you “liberal artists” that historical analysis of racism and eugenics in America presented by Kelly Lytle Hernández, a history professor at UCLA, helped make the record and carry the day!
Just the kind of interdisciplinary interaction that permeates judging, particularly in immigration and human rights, and argues for more liberal arts grads with backgrounds in history, the humanities, linguistics, demographics, and social sciences on the Immigration Bench and the Article IIIs.
I’ve long criticized the “ahistorical” sometimes “anti-historical” approach taken by the BIA and other Federal Courts! For example, promoting the fiction that treaties, laws, ombudpersons, and even elections magically change centuries’ old animuses and make everything “hunky dory” for long-persecuted social, political, ethnic, religious, or racial groups.
Now, if we can only get the Article IIIs to do their job and hold the entire EOIR system, as currently operating, which has fatal racial bias, fairness, impartiality, expertise, and operational problems that make it a “walking violation of due process,” unconstititional, we could be on the way to the change America needs to bring an end to the present national disgrace in our Immigration Courts which is diminishing justice for everyone in America.
Additionally, despite life tenure, most Federal Courts have been reluctant to enforce the Constitution against the many Executive and Legislative abuses in the area of immigration and human rights. So, I would be disappointed, but not surprised, if this ruling is reversed on appeal.
Nevertheless, it’s an important step in exposing racism, connecting it with immigration, establishing truth, and fighting the Executive’s unconscionably bad and often illegal performance on immigration and race! While Garland might incorrectly think that immigration and human rights are “back burner” issues, by the time the NDPA is done with him they might well be issues that consume most of his time and irreparably damage his reputation. That’s why a wise Attorney General would be “leading the bandwagon for Article I” while immediately bringing in the progressive experts necessary to re-establish due process and efficiency at EOIR.
At any rate, this is exactly the kind of “creative disruption” that needs to happen until the system wakes up and makes the necessary progressive, due process, equal justice reforms long overdue at EOIR and other parts of the immigration bureaucracy.
– Sozi
