NOTE: This story originally “broke” in a report by Suzanne Monyak at Law 360. Those with access can check it out here: https://www.law360.com/articles/1081651/gov-t-decries-pick-to-monitor-facilities-for-immigrant-kids
Link to original court filings kindly provided by Dan Kowalski at LexisNexis Immigration Community.
https://dlbjbjzgnk95t.cloudfront.net/1081000/1081651/031128961307.pdf
Defendants respectfully object to the appointment of former immigration judge (“IJ”) Carol King as the Flores independent monitor. As an initial matter, while Defendants agree that former IJ King has significant experience with immigration law, Defendants object because former IJ King appears to have little or no direct experience with U.S. Customs and Border Protection (“CBP”) or U.S. Immigration and Customs Enforcement (“ICE”) holding and detention facilities themselves, or more specifically with the conditions at such facilities, the management of such facilities, or the legal standards applicable to such facilities, which go beyond substantive immigration law.
Moreover, former IJ King has no demonstrated background in overseeing complex litigation or compliance with consent decrees. Immigration judges have limited powers delegated to them by regulation to decide individual cases, and only for matters designated to them under the Immigration and Nationality Act. 8 C.F.R. § 1003.10(b). This is very different from the substantial and complex task of overseeing the operations of multiple agencies as is required in the present matter. Given this lack of experience, Defendants disagree that former IJ King would have only a “minimal learning curve” in undertaking to serve as an independent monitor related to the issues in the Court’s June 27, 2017 order.
Defendants also object to the appointment of former IJ King on the ground that she has published a writing to promote her law practice that gives the appearance of a very real and serious bias against the defendants. These sentiments, expressed publicly, at the very least create the appearance that former IJ King would not carry out her duties as special master with the type of impartiality that is required for a quasi-judicial role. These statements criticize a defendant in this matter – the Attorney General – and address policies relating to children subject to the Flores Agreement.
Specifically, on her law office web site, former IJ King states in the “Introduction to Carol King Law Office” that “[t]he current wave of attacks on immigrants [that] has clearly been manufactured . . . to sow division and grab power” includes “those who have been so viciously attacked . . . immigrant parents and young children.” Introduction to Carol King Law Office, July 9, 2018, available at: https://carolkinglawoffice.com/2018/07/09/hello-world/. Former IJ King further states that “[t]he lack of any ethical, moral or compassionate compass reflected in the current administration is more disturbing than anything in recent history[,]” and that the “current actions on the part of the President, Attorney General and administration, which reflect only a commitment to power and to hatred, hurt me so deeply.” Id.
To be sure, there is nothing improper about holding strong views on government policies, but public statements such as these are not consistent with performing the quasi-judicial function of a special master, where officers must meticulously avoid “[c]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge” because it “undermines public confidence in the judiciary.” ABA Model Rules of Judicial Conduct 1.2, Comment [3]; see id. Comment [5] (“[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge . . . engaged in other conduct that reflects adversely on the judge’s . . . impartiality”). The published criticism of a named defendant, and of government policies related to children who are subject to the Flores Agreement, as an introduction to her law practice do not, Defendants submit, meet this exacting standard. A reasonable person could question, in light of such statements, whether former IJ King will be impartial in evaluating compliance with this Court’s orders for facilities that are currently operated by Defendants CBP and ICE, who are agencies of that same administration against which former IJ King has a clearly and publicly expressed bias. Defendants therefore object to the appointment of former IJ King as an independent monitor in this case.
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Let’s get this straight! The DOJ Attorneys who filed this with Judge Gee represent and work for a named defendant Jeff Sessions who:
- Unapologetically masterminded the “zero tolerance” policy that resulted in the unconstitutional separation of children and the intentional violation of Judge Gee’s earlier order in the case;
- After having his legal arguments soundly rejected by Judge Gee is actively trying to “back door” his contemptuous behavior by proposing unlawful regulations that any reasonable person would know would be “dead on arrival;”
- This week told supposedly “fair and impartial” judges who work for him, without any supporting evidence, that “the vast majority of the current asylum claims are not valid under the law;”
- Knowingly and intentionally misrepresented the DOJ’s own statistics relating to asylum grants on the merits to understate the grant rates to make them appear to support his false anti-asylum narrative;
- Warned Immigration Judges not to be “sympathetic” toward asylum applicants appearing before them in Immigration Court;
- Intentionally created a false narrative linking asylum policy to Southern Border arrivals that ignores the majority of reliable studies showing that refugee producing conditions in foreign countries, not changes in US policy, drive individuals to seek refuge;
- In the words of AILA, before Immigration Judges expressed his “disdain for lawyers who take a solemn oath to uphold the law” and showed “a complete disregard for the role of independent judges in overseeing our adversarial system;”
- In front of a group of Immigration Judges referred to attorneys representing individuals asylum cases (many serving pro bono or “low bono”) as “dirty lawyers;”
- Promoted the role of “judges” as enforcement officers rather than fair, impartial, independent adjudicators;
- Unethically acted in a quasi-judicial capacity in Matter of A-B- after publicly prejudging the substantive issue in the case during a radio interview.
So, how do these DOJ lawyers, with straight faces and in compliance with their ethical duties, have the audacity to argue the ABA Model Rules of Judicial Conduct against Judge King (who does not currently serve in any judicial capacity) when their own boss and named defendant is in violation of that provision (and also the EOIR’s own rules of judicial conduct). No “reasonable person” would believe that Jeff Sessions, in light of his public antipathy to migrants, asylum seekers, and their lawyers, and his clear, highly inappropriate favoritism for DHS Enforcement could properly and ethically run the Immigration Courts and actually act in a quasi-judicial capacity in individual cases! Yet, he is still doing both, to the detriment of Due Process and the rule of law.
Jeff Sessions has total contempt for the Constitution, the law, and courts of every type (both the ones he controls and the ones he appears before through DOJ attorneys). At some point, the Article IIIs, if they wish to maintain their position as a “separate but equal Branch” are going to have to take on the biased, contemptuous, and overtly unethical performance of Attorney General Sessions head on. Otherwise, he will run right over them as he has the US Immigration Courts and the Constitutional guarantee of Due Process.
PWS
09-12-18