Start with current BIA judge:
- Judge Andrea Saenz
Add these “extraordinary practical scholars” who happen to be the “seven most-cited immigration scholars under 50” (https://lawprofessors.typepad.com/immigration/2021/12/immprofs-make-most-cited-faculty-under-50-list.html):
- Amanda Frost (American)
- Jennifer Chacón (Berkeley)
- Ilya Somin (George Mason)
- Adam Cox (NYU)
- César Cuauhtémoc García Hernández (Ohio State)
- Michael Kagan (UNLV)
- Cristina Rodriguez (Yale)
Appoint these inspirational, dynamic, proven “scholar leaders” as Co-Chairs:
- Dean Kevin Johnson, UC Davis Law & “most cited” immigration scholar;
- Marielena Hincapie, National Immigration Law Center.
Add in three experienced Vice Chairs who really “know the business” (including where all the bodies are buried @ EOIR and how to make bureaucracy respond):
- Judge Noel Brennan, NY Immigration Court, former BIA Appellate Judge;
- Judge Dana Leigh Marks, San Francisco Immigration Court, former NAIJ President, “winning” attorney before the Supremes in the landmark asylum case INS v. Cardoza-Fonseca;
- Michelle Mendez, currently Director, Defending Vulnerable Populations @ Catholic Legal Immigration Network (“CLINIC”).
Wild Card Round:
- Jason Dzubow, Esquire, “everyone’s favorite Asylumist;”
- Lauren Wyatt, CLINIC, NYC, inspirational scholar-role model working “in the trenches;”
- Ayodele Gansallo, HIAS Pennsylvania, Penn Law, co-author of Understanding Immigration Law and Practice, the “Bible of aspiring practical scholar-practitioners;”
- Jaya Ramji-Nogales, Associate Dean, Temple Law, co-author of Refugee Roulette and The End of Asylum.
********************
Now, THAT’S an amazing, inspiring, dynamic “all-star judicial lineup” that could actually achieve the former “EOIR Vision” of: “Through teamwork and innovation, become the world’s best administrative tribunal, guaranteeing fairness and due process for all!”
What does this diverse group have in common?
- Demonstrated, unswerving, overriding commitment to due process and fundamental fairness for migrants and all persons in America;
- Impeccable, accessible scholarship in human rights, migrants’ rights, and constitutional interpretation;
- Courage to speak truth to power;
- Expertise in and concern for ethical issues;
- Ability to engage in robust dialogue without sacrificing fundamental principles;
- Ability to lead by example and inspire others;
- Practicality;
- Creativity;
- Humanity;
- Independence;
- Widespread recognition, respect, and admiration among peers.
This court also would have the potential to deliver a long-overdue “wake up call” to the now-floundering Article III Judiciary.
Why would members of this high-powered group of intellectual giants be willing to leave comfortable current positions to accept the challenge of leading and reforming what currently is “America’s Worst Court System?”
- A chance to be on a team of some of the most powerful “practical legal intellects” in America;
- A chance to show how a diverse court of exceptionally-well-qualified judges can solve problems, implement best practices, and achieve timeliness and efficiency while enhancing due process;
- The chance to save lives and improve futures — to make a positive difference in the world that will inspire future generations;
- The chance to redefine “justice in America” in a positive way.
The BIA also has a large, talented staff of lawyers (I was one myself, back in the day) who would thrive and prosper under the intellectual leadership of these “practical scholars” and proven teachers! The BIA is potentially the “premier legal university/think tank” in America. But, unlike most think tanks, one with a mission, the ability to render best interpretations, implement best practices, and to issue hundreds of life-defining decisions every day! What other court in America could say the same? Why is this amazing untapped potential basically going to waste?
A pipe dream? Probably. But it shouldn’t be!
Photo by Michael J. Cargill
Creative Commons License
Just look how in a relatively short time as a head coach at a “non-power-conference” HBCU, Jackson State, dynamic former NFL star and “larger than life” personality “Neon Deion” Sanders has shaken up the system and changed the “playing field” in the insular world of “big time college football.” This week, the “projected top recruit” in America chose Sanders & J-State over the “powers that be.” Presence, leadership, boldness, talent, and results (Jackson State was 11-1 this year) can force change for the better in even the most inbred and change-resistant systems (like EOIR, and to a large extent, the entire Federal Judiciary)!
It’s totally within Judge Garland’s power, if he would only wake up and make the bold, yet totally logical, justified, and long overdue moves necessary. He’s already sinking deep into the morass of responsibility for probably the most dysfunctional, yet consequential, failed “court” system in American legal history. What’s he got to lose by taking the steps necessary to dramatically turn things around?
As I recently wrote about EOIR:
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
Recent GOP Administrations have been perfectly willing to unethically “weaponize” EOIR to carry out their far-right, nativist political agenda. They have “shrugged off” near-universal criticism of their most outrageous moves, including key quasi-judicial selections, and, inexcusably, “dumbed down” EOIR.
Democrats, by contrast, have been timid, indolent, and feckless, failing to undo the damage and make due process, fundamental fairness, and equal justice for all persons a reality rather than a cruel false promise. Garland appears bullheadedly determined to move in the same wrong direction.
And, “time’s a wasting!” We’re nearly a year into an Administration that promised real improvements but has basically carried out a disgraceful “Miller Lite,” anti-humanitarian, anti-constitutional agenda of abusing, mistreating, and dehumanizing legal asylum seekers and other migrants. As pointed out recently by a number of us, this also extends to the dedicated attorneys and representatives trying to preserve at least some semblance of justice in our stunningly dysfunctional Immigration Courts.
As if to prove his tone-deafness, imperviousness to meaningful change at EOIR, and utter disdain for those advocates and “practical scholars” who helped him get his job, after one “better-balanced selection list,” Garland’s latest 22 Immigration Judge appointments reverted to the usual array of government and prosecutorial background appointments to the near-total exclusion of private/NGO/academic sector superstars who have the potential to materially change the trajectory of today’s dysfunctional Immigration Courts. Check this out! How many names do YOU recognize as among the “leading lights” of human rights and immigration scholarship and advocacy? How is this going to help advance due process, promote fundamental fairness, reduce the backlog, develop best practices, and reverse the endemic dysfunction at EOIR?
Compare and contrast this list with the ”Dream BIA” described above. The private sector talent pool to improve judging and justice at EOIR is really deep. But, Garland stubbornly refuses to “take the plunge” even as what’s left of our immigrant justice system disintegrates around him!
As Neon Deion could tell Judge G., “getting the best when you’re not yet the best” often involves working extra hard hard to actively change perceptions and aggressively recruit the “star talent.” Just sitting back to see who might apply or sign up doesn’t work any better at EOIR than it does in “non-power-five” college football.
This should be a perhaps never to be repeated chance to “model” a better Federal Judiciary. Almost overnight, Immigration Courts could go from being a “sad but true YouTube comedy routine” to an inspiring model for a better-functioning and more just Federal Judiciary.
But, not with the current personnel in place! Not with the opaque inbred selection process Garland currently uses (getting some outside Government expert input into judicial selections would be a “no-brainer” starting place). Garland is letting it slip through his fingers, but migrants and the rest of us are going to pay the price!
The “new generation” of our legal profession should be both outraged and existentially motivated to stand up to Garland’s intransigence! It’s not just migrants’ lives that are at stake here (as if that weren’t enough, in and of itself)! It’s the future of the U.S. Justice system, our legal profession, and liberal democracy that are swirling down the drain as Garland watches from his ivory tower refuge!
My time on the stage is winding down. But, for a new generation of legal professionals, it’s just starting. YOU and yours are going to have to live with the broken justice system and inferior judging that Garland is countenancing. Demand better, or prepare to live with the ugly consequences of a failed judiciary!
🇺🇸Due Process Forever!
PWS
12-18-21