IMMIGRATIONPROF BLOG: Law Student Essay Captures Essence Of Problem In Immigration Courts: “Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period.”  Structural Problems, Indefensible Personnel Decisions, Byzantine Bureaucracy Continue To Plague Garland’s Broken Courts!☠️

 

https://lawprofessors.typepad.com/immigration/2021/10/good-judge-bad-judge.html

Guest blogger: Kelsea Villanueva, law student, University of San Francisco

Not all judges should be immigration judges. Sometimes being a judge is just not for everyone, period. Bad attitudes and questionable decision making within the immigration courts often cause the most noise because the impact is often more than a rude remark. While I do not believe problematic judges make up the whole picture of immigration courts, just one bad judge can be enough to impact the lives of many, and I only wonder whether it is the system that perpetuates behavior, the history and beliefs of immigration, or both that give rise to bad experiences.

Surprisingly in our own city, San Francisco Judge Nicholas Ford was the subject of a complaint that was sent to the U.S. Justice Department for being hostile and having biased treatment of immigrants in the courtroom. The accusations stated that he belittled migrants’ stories and struggles by making inappropriate comments. One account stated that he said “I can tell an indigent person when I see one, and you can afford an attorney” in response to someone who claimed they could not pay. Many accounts also made it a point to mention that he had previously been criticized for jailing a pregnant woman without bail for a nonviolent crime – this gives an idea of his character in court. When he was first appointed by the Attorney General under the Trump administration, Ford had been a judge in the criminal justice system and apparently had no prior immigration law experience. Other judges that have similar backgrounds can take biases from the criminal justice system and bring them into the immigration law field. There is the risk that the treatment of criminals becomes synonymous with the treatment of immigrants.

Even if judges like Ford represent a minority, the behavior exhibited by him is not unusual in immigration courts. In Jacinto v. INS, 208 F. 3d 725 (9th Cir. 2000), it was difficult for the respondent to even answer basic questions about her family’s struggles; she was constantly faced with interruptions by the immigration judge and a blatant lack of patience. Most people regardless of being an immigrant or not could become overwhelmed during questioning or lack of information about legal procedures. Lacking compassion and basic manners, whenever Jacinto was asked a question regarding why she was seeking asylum, the immigration judge or government attorney would interrupt her midsentence and not allow her to ask any clarifying questions. The transcripts reveal a sense of confusion and urgency, as they treated her as if they were in a rush and like she was wasting their time.

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Kelsea Villanueva, a law student, “gets” it! So why don’t Garland and his lieutenants? 

Perhaps, because they are too far removed from the human trauma and and the practical problems in the broken and unfair “courts” for which they are responsible! They obviously have become indifferent to the unnecessary human suffering they cause by tolerating this systemic stain on American justice.

It’s not that there aren’t lots of exceptionally well-qualified immigration lawyers, practical scholars, and effective litigators in the Bay Area (and most other areas where Immigration Courts are located) who would make great Immigration Judges. Therefore, it has taken a concerted effort over the past four Administrations, including the Biden Administration, NOT to recruit, attract, and hire the “best and  brightest” for these life or death judicial positions. 

One “key to building dysfunction” has been the childish, demeaning, and disrespectful treatment heaped upon the “IJ Corps” by DOJ politicos and EOIR “Management” trying to appease their “handlers.” Attempts to enforce “assembly line justice,” lousy technology, poor training, screwed up and always changing “priorities,” micromanagement by non-judges, and favoring “quick numbers” over thoughtful high quality judicial work product obviously discourages many of the most talented and well-qualified lawyers in the business from even applying. 

Some of those who do make the effort are then demoralized and discouraged when clearly inferior candidates, some lacking even basic immigration and asylum knowledge, are hired by a DOJ bureaucratic system that too often seeks and rewards complicity and “following orders” over intellectual excellence, proven immigration and human rights expertise, and the courage to make the right decisions even in the face of political pressure from above to “go along to get along” with each Administration’s enforcement agenda.

Surely, no panel of immigration/human rights experts would have recommended hiring someone like Judge Ford for the job! So, why was he even on the Immigration Bench in the first place? 

In every way, Judge Ford was EOIR’s self-created problem! It tied up both private resources and Government investigative resources that could have been better used. It further damaged EOIR’s reputation and ruined human lives. In the end, the “Ford brouhaha” produced no transparent results, thus further eroding public confidence in Government. It prompted neither accountability nor reforms to insure a better judicial selection process!

The best way to limit the administrative nonsense, unnecessary and inappropriate meddling, and time and resources wasted building a needless, ineffective bureaucracy to “monitor performance” and investigate complaints is to hire exceptionally well-qualified judges in the first place — good judges need neither much supervision nor significant monitoring. All they need is support, independence, professional training, continuing judicial education, and some inspirational encouragement from dynamic, well-qualified judicial leadership — things that generally have been in short supply within the EOIR bureaucracy, particularly over the past four years!

Leaders should be sitting judges — not just disconnected bureaucratic “managers” — who continue to handle regular dockets so they have the necessary perspective and first-hand experience to lead this broken system back to functionality. In what other “real” judicial system do the “chief judges and chief justices” largely or completely cease to perform judicial duties?

For example, Chief Justice John Roberts has no shortage of administrative and leadership tasks. Yet, somehow, he finds time to participate in every merits case coming before the Court! 

Almost every day, we see Court of Appeals decisions in which the Chief Judge of the Circuit was a panel member, sometimes even writing the opinion. Chief U.S. District Judges hear cases and sometimes author lengthy opinions in notable and controversial cases. 

There are few, if any, examples of successful judiciaries in which those in leadership positions isolate and insulate themselves from the judicial tasks of their colleagues! Yet, this has become “standard operating practice” at DOJ/EOIR. This is despite “clear and convincing evidence” that DOJ/EOIR’s bloated “Vatican style” (a/k/a “Legacy INS style”) bureaucracy is incapable of practical problem solving and has presided over the demise of a court system that once aspired to greatness, even if the efforts sometimes fell short!

The taxpayer money wasted on ludicrous “Immigration Judge Dashboards,” unnecessary “supervisors” who almost never go to court, ineffective and inefficient “Dedicated Dockets,” establishing “TV Adjudication Centers” in strange places, and running “kangaroo courts” embedded in the DHS Gulag could be repurposed into funding legal representation programs, a functioning e-filing system, more Judicial Law Clerks, judicial training by experts, and other badly needed and long overdue improvements and reforms. These things would actually help the system achieve justice with efficiency, rather than aggravating existing problems!

EOIR’s “customer service,” transparency, and engagement with the public get consistently low marks from Government watchdogs. I see no improvement under Garland.

Any legitimate system for judicial tenure or retention relies on robust public input and some peer involvement — things that are foreign to the DOJ/EOIR model which, if I do say so myself, bears a disturbing resemblance to the Byzantine bureaucracy of the “Legacy INS” (although the there are only a few us still around who experienced the latter “first hand”). 

Ironically, EOIR was originally established as an independent agency within DOJ to “free” it from the “Legacy INS;” over the years it has come more and more to look, feel, and operate like the worst aspects of that long-disbanded agency. 

In particular, it has “retaken on” the image of “being just another appendage of immigration enforcement” — a complete abandonment of the original goal of increased judicial independence in both fact and appearance!

Numerous private lawyers have related to me that being in an EOIR “courtroom” is too often “like facing two prosecutors.” Some say that their already traumatized clients are “re-traumatized” by the rude, disrespectful, and inhumane treatment they receive in Immigration Court as they attempt to plead for their lives and their families’ futures! What kind of judiciary “operates” in this manner?

For heaven’s sake, even former AG Alberto “Gonzo I” Gonzalez, hardly a “due process warrior,” spoke out publicly against demeaning treatment of migrants by Immigration Judges! Article III Courts continue to document instances of bias, incompetence, and cavalier treatment of human lives in Garland’s Immigration Courts at both trial and appellate levels. Yet, he says nothing and has taken few actions to solve the myriad of festering problems! We deserve better, much better, from the “people’s top lawyer!”

It’s also worth contemplating why law students understand the systemic problems and potential solutions better than the senior Government lawyers and officials we are employing and paying to mismanage it!

You can read the rest of Kelsea’s excellent piece at the above link!

🇺🇸Due Process Forever!

PWS

10-20-21

DESIGNED & STAFFED BY THE GRIM REAPER! ☠️⚰️— Star Chambers 🤮⚰️ Masquerading As “Courts” Are A Hotbed Of Institutionalized Racism, Cruelty, Bias, Bad Law, Worst Practices & A Refuge For Maliciously Incompetent Administrators 🤡 & Patently Unqualified “Judges”🤮  — All The Talent Has Been Exiled, Buried In The Field, Or Driven Out! — The Biden-Harris Presidency & The Future Of America As A Nation Of Laws  Depend On An Immediate Fix To This Grotesque Affront To Due Process, Fundamental Fairness, Human Dignity & Good Government Called “EOIR 🏴‍☠️!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Grim Reaper
Recent Barr Appointee Prepares to Take Bench
Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.google.com/url?q=https://www.justsecurity.org/73337/the-urgent-need-to-restore-independence-to-americas-politicized-immigration-courts/?utm_source%3DRecent%2520Postings%2520Alert%26utm_medium%3DEmail%26utm_campaign%3DRP%2520Daily&source=gmail-imap&ust=1605992548000000&usg=AOvVaw2Lv6qMLlyAHGvI3TEwjt62

Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:

The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.

In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.

Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.

The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.

The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.

Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.

Packing the Board of Immigration Appeals

The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.

The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.

The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.

A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.

Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)

. . . .

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Read Gregory’s complete article at the link.

Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)

According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:  “In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”

Read about it from the Bay City News here: https://www.nbcbayarea.com/news/local/san-francisco/compliant-filed-against-sf-immigration-judge-accused-of-hostile-treatment/2399398/

With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!

Enough of the malicious incompetence, institutionalized racism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing  “crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.

The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA! 

There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!

This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!

Due Process Forever!

PWS

11-15-20

😎👍🏼🥂SHEEEEEEE’S BACK! TAL KOPAN @ SF CHRON RETURNS TO THE “IMMIGRATION BEAT” WITH A POWERFUL IN-DEPTH LOOK AT HOW AMERICA’S MOST DYSFUNCTIONAL “COURT SYSTEM” PREDICTABLY SCREWED UP THE COVID-19 RESPONSE WHILE DEEPENING HUMAN MISERY INFLICTED ON THE “BACKLOGGED” — “’There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,’ said Ashley Tabaddor, president of the National Association of Immigration Judges.”

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/Immigration-courts-in-chaos-with-15276743.php

Immigration courts in ‘chaos,’ with coronavirus effects to last years

By Tal Kopan

 

WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.

This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.

Thanks to the coronavirus, she will have to endure the wait for three more years.

“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”

Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.

“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.

The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.

The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.

The agency’s inspector general is investigating the handling of the courts during the pandemic.

The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.

In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.

With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.

None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.

Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.

Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.

The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.

The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.

Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.

Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.

She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.

“It was the most bitter experience I’ve ever had,” she said in Spanish.

After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”

“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”

Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.

San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.

Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.

“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.

She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”

Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.

Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.

“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.

Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.

The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”

Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.

“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”

Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.

“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”

San Francisco Chronicle staff writer Alexei Koseff contributed to this report.

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter:@talkopan

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It’s great to have you back, Tal! We’ve missed you!

It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.

What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated. 

Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.

While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.

As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket. 

In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”  Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.  citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration. 

This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.

The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.” 

Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!

Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process. 

Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.

Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances. 

Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.” 

Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.  The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.  Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.

Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.

To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.  Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?

Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!

Due Process Forever! Complicit Courts Never!

PWS

05-18-20

 

THREE THANKSGIVING CHEERS FOR IMMIGRATION JUDGE JULIE NELSON (SF) & APPELLATE IMMIGRATION JUDGE ELLEN LIEBOWITZ (BIA) — Doing Justice, Granting Asylum, Saving Lives In The Age Of Trump!

My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:

Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.”  The written decision of the IJ, Julie L. Nelson in SF, is also included.

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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.” 

And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!

What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection? 

BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.  

Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.

Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”

It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical  “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!

With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.

Help the New Due Process Army fight for a better, more just, future for America and the world.

Due Process Forever!

Happy Thanksgiving.

PWS

11-28-19

EAST BAY EXPRESS: Are U.S. Immigration Court Hearings For Unrepresented Individuals Unconstitutional? Darwin BondGrahm Seems To Think So — Perhaps Darwin Is Right!

http://www.eastbayexpress.com/oakland/inside-immigration-court-are-deportation-hearings-in-the-bay-area-unconstitutional/Content?oid=5642504

Darwin BondGraham reports in a profile of justice at the U.S. Immigration Court in San Francisco, CA:

“Ilyce Shugall can rattle off a similarly long list of due-process problems. The directing attorney of Community Legal Services in East Palo Alto, Shugall is one of a couple dozen pro-bono lawyers who try to provide counsel to a fraction of the people facing deportation in San Francisco.

“Procedural protections don’t really exist, despite the consequences of banishment,” she said at a recent legal symposium held by the Thelton E. Henderson Center for Social Justice in Berkeley. “There’s no right to an attorney, but the government is represented in every case by an ICE attorney.”

As Shugall sees it, the ICE attorney also has a kind of home-field advantage: Being in the same courtrooms day-in, day-out, allows an attorney to establish better rapport with judges.

And the judges and ICE attorneys all have the same boss: The President of the United States.

The immigration judges are employees of the Executive Office for Immigration Review, which is overseen by the attorney general — they’re not members of the independent judicial branch of government. The ICE attorneys work for the Department of Homeland Security.

Over her career practicing immigration law, Shugall said she’s seen ICE attorneys frequently miss filing deadlines without consequences; file motions on the day of a hearing, preventing review by the defense; and withhold records in a case from the person being targeted for deportation, thereby forcing them to file a burdensome Freedom of Information Act request to get the documents.

She’s also seen extended detention result, countless times, in what Mr. Gonzales apparently did in Judge Murry’s courtroom this past December: Give up on his case and beg to be deported, just to get escape the misery of jail.”

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The full article, which I found through ImmigrationProf Blog, is well worth a read.

I think that the Administration’s ill-advised “pedal to the metal” detention and removal plans, combined with elimination of funding for various Government sponsored outreach, information, and self-help programs is very likely to bring the due process weaknesses of the current U.S. Immigration Court system to a head.

I would not be surprised if a U.S. District Judge somewhere issues a TRO preventing the Government from proceeding in certain types of cases unless the individual is represented. After all, the Government was recently blocked in the 9th Circuit from proceeding against incompetent individuals without establishing some viable system for determining competency and representing those determined to be incompetent.

I also predict that the Administration’s ill-conceived plan to “jack up” detention, particularly by using private facilities which have been determined to have a greater incidence of problematic conditions, is likely to result in major “conditions of detention” litigation and, perhaps, further intervention by the Article III Courts.

Rather than studying the situation and looking for ways to fix our broken immigration justice system so that individuals receive the due process to which they are entitled, the Trump Administration seems determined to make matters worse by turning up the volume. That’s likely to have unhappy consequences not only for the individuals, but also for the Administration.

PWS

03/13/17