"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.
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.
. . . .
There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.
. . . .
Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.
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Read the complete report, with charts and graphs, at the above link.
It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.
This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.
Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.
Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.
And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?
It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!
Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.
Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!
🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
. . . .
Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
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Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
. . . .
Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
. . . .
The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
. . . .
Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
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Read Yulin’s full article at the link.
First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.
Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!
So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?
The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.
Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!
Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.
Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.
Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.”But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!
Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.
Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!
The TRAC “national average” for asylum denials by IJs during this period was 67.6%.
So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”
As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.
All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.
Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.
Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!
Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.
The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.
While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.
He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)
Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!
Indeed, a full year the SF Chron’sTal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”
From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?
Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”
As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!
Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡
There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!
The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!
These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.
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Read Austin’s findings at the link.
The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team.
Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better.
The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it
WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.
The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.
…
Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.
Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.
Welcome and long, long, long overdue news! But, is it too little, too late?
Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.
Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.
In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!
The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.
Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.
Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.
The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.
Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.
In other words, Garland has been a disaster for those committed to due process, racial justice,equal treatment under law,and a diverse, welcoming, stable American democracy.
Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!
Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.
The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.
Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”
“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”
Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.
The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.
The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.
The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.
Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.
The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.
In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.
Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.
The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.
The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.
ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.
The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.
Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”
“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.
ICE and the Department of Justice declined to comment on the filing when reached Wednesday.
The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.
American Oversight is represented in-house by Katherine M. Anthony.
Update: This article has been updated to include comments from the ACLU.
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Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump.
His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”
No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself“out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration!
I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants!
Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives.
Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.
The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.
Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.
“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”
The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.
. . . .
But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.
. . . .
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Read the full article at the link.
“Awkward” seems like a “sanitized term” for “duplicitous and immoral!”
So, I assume that the Dems who are unwilling to stand up for progressive values and the human rights of migrants will look to their GOP nativist, White Nationalist buddies for contributions and votes come election time. Contrary to DOJ’s misrepresentation to the courts, individuals regardless of status had a statutory and treaty right to seek protection in the U.S. regardless of manner of entry. The unconstitutional Sessions/Miller scofflaw conduct was intended to punish and deter individuals from asserting and vindicating their legal rights.
Additionally, so-called “illegal entries” are to a large extent fueled by illegal policies by both the Biden and Trump Administrations of not having an operating, fair, timely asylum system at legal ports of entry. This has been compounded by failure of both Administrations to establish robust, fair refugee processing systems for Latin America in the regions where the refugee situations are generated.
I have a different perspective: A party afraid to stand up for the values of its core constituency stands for nothing at all! And we already have a major “party of no values.” So, the “competition” for the “no values voters” might already be over.
Disgusting as the anti-democracy, White Nationalist GOP is, I must say that they know who their supporters are and aren’t afraid to act accordingly. Just who are the Dems representing in this disgraceful and cowardly race to the bottom being led by Garland and Mayorkas (with an assist from Vice President “Die in Place” Harris)?
The Biden Administration’s “policy” of abandoning asylum seekers and allowing the Immigration Courts to operate dysfunctionally with mostly “holdover judges” and ever-mushrooming backlogs hasn’t proved to be a “political winner” to date. So, why do the tone-deaf Dems pushing it believe it will help them in November?
Hopefully, at least some Federal Courts will see through Garland’s disingenuous smokescreen and stick the DOJ & DHS with judgements much larger than the ones they were afraid to agree to in settlement.
The Garland DOJ continues to squander time, resources, and goodwill by filling the Article IIIs withill-advised “Stephen Miller Lite” litigation positions. And, these are the folks progressives are depending on to vindicate voting rights and hold the leaders of the insurrection accountable? Good luck with that! Garland appears to be too busy defending Stephen Miller’s policies to effectively push progressive, due-process-oriented positions in the Article IIIs or reform his wholly owned, totally dysfunctional Immigration “Courts.”
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
IMMIGRANT LEGAL DEFENSE
FOR IMMEDIATE RELEASE January 10, 2022
Contacts:
Immigrant Legal Defense
Ilyce Shugall, ilyce@ild.org, (415) 758-3765
Siobhan Waldron, siobhan@ild.org, (510) 479-0972
Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980
Omar Ameen Files Federal Lawsuit Seeking His Release
After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism
San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.
After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.
Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.
“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”
“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.
“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”
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Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.
The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.
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Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.
To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).
“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”
One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.
It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.
In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.
He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.
But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.
It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”
Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.
Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️
“I could not be more grateful for Esther Olavarria’s myriad contributions to the Biden-Harris Administration, particularly her work to reverse the cruel and reckless policies of the previous Administration and to implement President Biden’s vision for a fair, orderly, and humane immigration system,” DPC head Susan Rice said in a statement to Politico.
A source told Politico that Olavarria hasn’t decided when her last day at the White House will be and will continue to work with the administration for the time being.
The Hill has reached out to White House for comment.
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The suggestion by Susan Rice that Olavarria was able to help implement a “fair, orderly, humane immigration system” is preposterous.
The Biden Administration dishonestly continues to use Stephen Miller’s bogus, racially motivated Title 42 ruse to deny fair treatment of asylum seekers at the Southern Border. Garland’s regressive “Miller Lite” Immigration Courts are in free fall, paralyzed by an astounding, ever-expanding 1.5 million case backlog. There is no functioning due process asylum system at our borders. Nor has Biden established robust, realistic “overseas” refugee programs in Latin America that could help obviate the pressure at the border.
Most of Mayorkas’s and Garland’s ill-conceived proposed asylum regulations have been panned by the Round Table and other experts. Biden’s promise to reform and strengthen gender-based asylum has disappeared into the bureaucratic morass at DHS and DOJ. In plain terms, Biden’s human rights’ program is a mess — lacking leadership, moral courage, practical experience, and legal expertise.
These are the real reasons why the “progressive practical experts” who should be leading human rights and immigration reforms for Biden are instead abandoning ship. The “deterrence crowd” and those who live in mortal fear of the nativist right are “driving the train” for Biden.
Garland blew the chance to use Marks’s last six to nine months prior to retirement to harness her incomparable knowledge and leadership to institute long overdue progressive personnel, procedural, and policy reforms to his disastrously dysfunctional Immigration Courts. Talk about loss of institutional knowledge of everything that has gone wrong at EOIR over the past two decades!
Also, ICE Principal Legal Advisor John Trasvina departed after an unusually short stint on the job, although he was replaced with another experienced immigration lawyer, Kerry Doyle.
Obviously, some of the “best and brightest” who once were willing to lend their expertise to an incoming Administration that (apparently disingenuously) claimed that it would reverse the “dehumanization of the other” by Trump and his cronies now believe their talents can be better used elsewhere.
As to the claims that the Olavarria and Moran departures were “normal,” don’t believe a word of it. Senior level policy advisors who believe their views are respected, making government better, and saving lives don’t “retire” after a few months on the job. It’s not like they weren’t bright enough to know their jobs would be highly stressful and personally inconvenient when they accepted their positions.
All this comes at a time when America is experiencing a worker shortage that many experts believe is being fueled by a declining birth rate and declining immigration. Seems like many of the workers we could use are legal asylum seekers who are being illegally turned around at our border while Mayorkas and Garland refuse to stand up for the rule of law. Could that have something to do with why those who have spent careers understanding the shortcomings of our immigration and human rights systems are “voting with their feet” on the Biden Administration’s muddled and wildly inconsistent approach to immigration?
Melody Busey ESQUIRE Associate Attorney Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.comIt should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard Principal Partners Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.com
Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published
PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.
OPINION: Judge Motz
CONCURRING OPINION; Judge Rushing
KEY QUOTE:
In sum, we hold that the BIA and IJ abused their discretion in denying Garcia
Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.
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Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!
Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!
Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.
That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in theBiden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!
When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.
Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPAattorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!
The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!
While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.
Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!
Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?
Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).
By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?
Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?
More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?
And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!
In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!
That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!
Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.
The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!
Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!
So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.
President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”
Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.
The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.
The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.
Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.
Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.
By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.
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Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!
“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.
The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!
If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand upfor the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!
For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”
As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)
It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.
WASHINGTON — What if you attempted a coup but people were unwilling to wrap their heads around what you had done?
A year after Jan. 6, 2021, that is the peculiar situation in which Donald Trump finds himself. Instead of being carted off in handcuffs for inciting an insurrection against the United States, or even just being banished from federal office for life by the Senate, the former president instead remains the leader of one of the two major political parties and is openly considering another run for the White House in 2024.
The government is finally taking the threat of far-right militia groups seriously. But the larger threat are the Republican legislators who continue to recklessly undermine democracy
One year ago, he was frantically barricading the doors to the House gallery to keep out the violent mob. Today, he calls the insurrection a “bold-faced lie” and likens the event to “a normal tourist visit”. The story of Andrew Clyde, who represents part of my – heavily gerrymandered – liberal college town in the House of Representatives, is the story of the Republican party in 2021. It shows a party that had the opportunity to break with the anti-democratic course under Donald Trump, but was too weak in ideology and leadership to do so, thereby presenting a fundamental threat to US democracy in 2022 and beyond.
The risk of a coup in the next US election is greater now than it ever was under Trump | Laurence H Tribe
Clyde is illustrative of another ongoing development, the slow but steady takeover of the Republican party by new, and often relatively young, Trump supporters. In 2015, when his massive gun store on the outskirts of town was still flying the old flag of Georgia, which includes the Confederate flag, he was a lone, open supporter of then-presidential candidate Trump, with several large pro-Trump and anti-“fake news” signs adorning his gun store. Five years later, Clyde was elected to the House of Representatives as part of a wave of Trump-supporting novices, mostly replacing Republicans who had supported President Trump more strategically than ideologically.
With his 180-degree turn about the 6 January insurrection, Clyde is back in line with the majority of the Republican base, as a recent UMass poll shows. After initial shock, and broad condemnation, Republicans have embraced the people who stormed the Capitol last year, primarily referring to the event as a “protest” (80%) and to the insurrectionists as “protesters” (62%), while blaming the Democratic party (30%), the Capitol police (23%), and the inevitable antifa (20%) for what happened. Unsurprisingly, the vast majority of Republicans (75%) believe the country should “move on” from 6 January, rather than learn from it. And although most don’t care either way, one-third of Republicans say they are more likely to vote for a candidate who refuses to denounce the insurrection.
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The increased anti-democratic threat of the Republican party can also be seen in the tidal wave of voting restrictions proposed and passed in 2021. The Brennan Center for Justice counted a stunning 440 bills “with provisions that restrict voting access” introduced across all but one of the 50 US states, the highest number since the Center started tracking them 10 years ago. A total of 34 such laws were passed in 19 different states last year, and 88 bills in nine states are being carried over to the 2022 legislative term. Worryingly, Trump-backed Republicans who claim the 2020 election was stolen are running for secretary of state in various places where Trump unsuccessfully challenged the results.
. . . .
At the same time, the Republican party has become increasingly united and naked in its extremism, which denies both the anti-democratic character of the 6 January attack and the legitimacy of Biden’s presidency, and is passing an unprecedented number of voter restriction bills in preparation for the 2022 midterms and 2024 presidential elections. As long as the White House mainly focuses on fighting “domestic violent extremism”, and largely ignores or minimizes the much more lethal threat to US democracy posed by non-violent extremists, the US will continue to move closer and closer to an authoritarian future.
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You can read both articles in full at the above links.
If you are counting on AG Merrick Garland to “lead the charge” on establishing accountability, your optimism might be tempered by his own failure to “clean house” at DOJ and in particular by his failure to reform his wholly-owned Immigration Court system that was front and center in assisting and carrying out the Trump/Miller White Nationalist assault on the rule of law, primarily targeting individuals of color and the “world’s most vulnerable” seeking justice in our system.
One year in, Biden has been slow to unwind Trump immigration policies
WASHINGTON — As President Biden approaches a year in office, immigration advocates fear he may have learned some lessons from his predecessor, Donald Trump — and not the ones they would have wanted.
Most immigration advocates abhor virtually every policy in the sphere that Trump pursued, but they do give him credit for two things: showing how much change an administration can make quickly, and driving home the power of fully committing to a salient political message. But they fear that instead of using those lessons to enact Biden’s stated objective — a fair, orderly and humane immigration system — the president has borrowed too many of his predecessor’s policies and not enough of the fervor.
Biden has extended Trump’s policy turning away the vast majority of immigrants at the border ostensibly because of COVID. The administration has also, under court order, reinstated and expanded a policy forcing migrants to wait in Mexico for court hearings, despite Biden running against the policy in his campaign. And his Justice Department is defending some of Trump’s policies in court against challenges from immigrant advocates.
Several immigration groups worked together on what became known as the “Big Book,” a collection of more than 500 policy recommendations for the incoming Biden administration. The pro-immigration group Immigration Hub has tracked about 150 that have been implemented so far. Many of those were reversing Trump policies.
“What we don’t have is a White House that’s committed to moving forward on the stated Biden administration agenda in the way that the Trump White House was committed to moving forward on theirs, and as a result, we’re living in a world where a whole lot of those Trump policies are still around,” said Omar Jadwat, director of the Immigrants’ Rights Project with the American Civil Liberties Union.
A White House spokesperson objected to the notion that Biden has not delivered progress on immigration, citing actions in the early days of the administration to roll back some of Trump’s policies, extend protections to young undocumented immigrants who came to the U.S. as children and new protections for migrants whose home countries are in turmoil.
“This administration is committed to working day in and day out to provide relief to immigrants and bring our immigration system into the 21st century,” spokesperson Vedant Patel said.
During the presidential campaign, Biden ran on turning the page from Trump’s hardline immigration policies and talked up a plan to get a pathway to citizenship for the undocumented into law. He also emphasized the importance of letting asylum-seekers make their case to stay in the U.S., and said the Obama administration in which he served made a mistake in waiting too long to enact immigration reforms.
In his early days in office, Biden did introduce policies cheered by immigration advocates, including rescinding Trump’s travel bans and embracing an aggressive legislative strategy to legalize millions of undocumented immigrants through procedural maneuvers that would require only Democratic votes.
But he also kept in place a controversial policy known as Title 42 that essentially closed the southern border to virtually all immigrants. Then in the spring, when border crossings soared to historic levels, the Biden administration doubled down on deterring migration, vexing many advocates who saw that strategy as essentially an embrace of the right’s talking points. Others have pinned their hopes on Vice President Kamala Harris, who forged a strong progressive streak on immigration while serving as California’s senator. She has led administration efforts to improve conditions in Central America, but also adopted deterrence talking points, including urging would-be migrants directly while in Guatemala: “Do not come.”
As Tal and others have observed, the Trump Administration “hit the ground running” on its White Nationalist anti-immigrant agenda, which was a key part of it’s overall anti-democracy, neo-fascist program.
The Biden Administration’s campaign pledges to undo the damage — not so much. In the end, lack of backbone, failure to leverage and use the expert talent available, not acting quickly, and treating values-based campaign promises as “fungible political capital” has left the Administration “wandering in the wilderness” on this key issue. Usually, standing for the right thing, even if risky, is a far better path than aimlessly wobbling around.
A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.
Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.
In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.
But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.
A growing backlog
Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.
“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”
Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.
The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.
“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.
This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.
Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.
Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.
“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.
Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.
History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.
“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”
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“What if Garland had to hang out with us in his backlogs?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Read Deepa’s full article at the link.
Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!
The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.
But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.
Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.
As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.
Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”
Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!
Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.
I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!
Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”
Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!
Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!
Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.
Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.
Better choices for the now-broken and regressive Immigration Judiciary are out there? Why hasn’t Garland tapped them? Kit Johnson Associate Professor of Law University of Oklahoma Law School
Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.
Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.
”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice” Star Chamber Style
Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.
It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!
🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”
KAYATTA, Circuit Judge. This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court’s declaration that noncitizens “detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence.” Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court’s declaration as advisory. Our reasoning follows.
And, he didn’t disappoint, at least on that score!
No sooner was the ink dry on my last post, than Ol’ Merrick gave me a classic example of why come “panic time” next Fall, when the Dem bigwigs come knocking on the door asking their “old reliable” progressive base to open their pocketbooks and get out the vote, they might find that the windows are dark and nobody’s home! If you don’t exist for the first 19 months of a Dem Administration, it’s hard to see why you wouldn’t be “on vacation” for the next three!
If Dems want to continue as a viable force in American politics, at some point they will need leaders who recognize the difference between “political strategies” and “values.” Standing up for the human and due process rights immigrants and all other “persons” in the U.S. is the latter, not the former!
To reiterate Garland’s position in this and related cases:
No due process for immigrants;
Keep the “New American Gulag” full of non-dangerous individuals;
Promote wasteful litigation, inconsistency, and chaos in my wholly-owed Immigration Courts that continue to operate as if “Gauleiter Stephen” were still calling the shots, and clutter the Article IIIs with my poor work product.
Nice touch! (Although, to be fair, it’s the same regressive, anti-due process, racially tinged position taken by both the Obama Administration and the Trump regime.)
Seems like an Administration that claims to be litigating, to date not very successfully (surprised?), to vindicate the voting rights and civil rights of African-Americans, Latinos, and other minorities might want to rethink arguing for the “Dred Scottification” of migrants, primarily persons of color. Maybe, some right-wing Federal Judge will start citing Garland back to Garland to say that “all persons aren’t really persons.” Sounds like something Rudy would say on a Sunday talk show (except that nobody invites him any more).
“Let’s see, if ‘humans’ are ‘persons,’ and ‘all persons’ have Constitutional rights to due process, then immigrants must not be ‘humans!’ Or, maybe we should argue that they are only 3/5 of a ‘person’ with half the rights! Chief Justice Taney would be. proud of me!” PHOTO: Wikipedia Commons
And, if you are wondering what the 34 pages of opaque legal gobbledygook and all out assault on logic and the English language in the majority opinion means, I’ll simplify it.
“We think it’s reasonable and appropriate that you plaintiffs who admittedly have had your Constitutional rights systematically violated by your litigation opponent should be required to seek redress on a case-by-case basis before a dysfunctional ‘court’ wholly-owned, staffed, and operated by your opponent located within a Government bureaucracy that has been litigating against your Constitutional rights over three Administrations!”
There, you have it! 34 pages of intentionally impenetrable “judgespeak,” legalese, and doublespeak condensed to one sentence of fewer than 65 words!
Anybody (besides me) think that maybe, just maybe, there could be a Constitutional problem with “courts” owned and operated by a litigating party? Certainly seems above Garland’s pay grade to trifle with such trivialities, even when human lives and freedom are on the line.
Nope, better to just regurgitate the “Miller Lite” positions from the “restrictionists’ playbook” left behind by your Trumpy predecessors. And, for a good measure, why not even use some of their lawyers to argue them? But, strangely, those folks don’t seem to be very convincing when, on rare occasions, they are sent out to argue for more humane and reasonable treatment of immigrants! Perhaps their hearts, and heads, just aren’t in it.
My congrats to Circuit Judge Lipez (concurring and dissenting), the only one to actually get this one right and be able to explain it in understandable terms. When you have the right answer, you don’t have to obfuscate as much to cover up your fuzzy thinking (or lack thereof).
Gotta love it! Garland runs an unconstitutional bond system that infringes on individuals’ right to freedom, while improperly shoving those not accused of crimes into his “New American Gulag.” Yet, the panel manages to talk itself out of granting effective relief! Truly remarkable!
If the judges in the majority had actually practiced before the Immigration Courts they might know:
1) Bond cases are hard to appeal because the IJ isn’t required to provide a final rationale for his or her decision until after an appeal has been taken;
2) By regulation, bond hearings aren’t even required to be “on the record” (although many of us chose to nevertheless put them on the record for the convenience and protection all concerned);
3) The BIA has a “general practice” of not adjudicating bond appeals by respondents until after the detained merits hearing has taken place, whereupon the BIA finds the bond appeal to be “moot;”
4) OIL often encourages DHS to release individuals who sue in District Court to moot the case.
I’m sure that Garland’s BIA which has, on occasion, blown off the Supremes and declined to follow Circuit Court orders on remand, will promptly fashion a very well-reasoned progressive precedent vindicating respondents’ rights.
Then again, maybe they will just take whatever position that their “boss” Garland wants to litigate in behalf of his “partners” at DHS Enforcement.
What do you think Garland’s personally owned and operated courts will do?
Better Judges for a Better America —starting with the BIA! And, while you’re at it, how about throwing in an Attorney General committed to vindicating the legal and human rights of all persons!
So, NDPA, take up, the cudgel of justice and flood Garland’s courts and the Article IIIs with as many individual “exhaustion of remedies” cases as it takes to obtain justice or grind Garland’s corrupt system to a halt!
Garland would “rather fight than get it right.” So, take advantage of his limited litigation skills, tunnel vision, and the mediocre talent he employs to do his bidding. Take the fight to him, as he wishes!
Continually pummeling him in court is apparently the only way to get Garland to pay attention to progressives!
Additionally, you should, of course, keep applying for Immigration Judgeships, BIA Judgeships, Asylum Officer positions, and other key jobs where you can make a difference and save some lives.
Garland’s tone-deaf system must be attacked from all angles until it collapses under its own weight. An Attorney General who obviously would like to put migrants, their humanity, their rights, and YOU, their advocates, “out of sight, out of mind” so he can think great thoughts about the “really important things in life,” is eventually going to find that those he ignores and condemns without fair trial will be the ONLY thing on his plate and occupying his time!
When leadership lacks the vision, courage, and skills necessary to promote change, it falls to those at all levels of society and our justice system to assert the pressure and impetus for that essential change to take place! Keep pushing and pressing until “the powers that be” can’t ignore and marginalize you any more!
Vanita Gupta, Lucas Guttentag, and Kristin Clarke, what on earth do you do with yourselves all day long, now that you have removed yourselves from the battle for civil rights, equal justice,and racial justice in America? I guess there are lots of papers to push and meaningless meetings to attend in Garland’s broken DOJ bureaucracy.
I’d say things haven’t changed much. But, I actually think they have gotten measurably worse since “my days” at the DOJ. And, that’s saying a lot!
