⚖️NAIJ RESPONDS TO U.N. ON NEED FOR INDEPENDENCE, GENDER DIVERSITY — “[A]chieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications.”

Honorable Mimi Tsankov
U.S. Immigration Judge
Chair, Diversity, Equity, and Inclusion Committee
Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee
National Association of Immigration Judges (“NAIJ”)

May 28, 2021

VIA EMAIL to SRindependenceJL@ohchr.org

The Honorable Diego García-Sayán

Special Rapporteur on the Independence of Judges and Lawyers United Nations Office of the High Commissioner for Human Rights Palais des Nations

1211 Geneva 10

Switzerland

Dear Honorable García-Sayán,

Thank you for the opportunity to respond to the Questionnaire on Gender Equality in the Judiciary.

I am writing in my capacity as Chair of the Diversity, Equity, and Inclusion Committee of the National Association of Immigration Judges (NAIJ). I am currently seated at the New York Federal Plaza Immigration Court. Hon. Brea Burgie and I co-chair the NAIJ Gender Diversity, Equity, and Inclusion Subcommittee.

Organizational Background

By way of introduction, NAIJ is a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the United States Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

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The focus of the NAIJ Diversity, Equity, and Inclusion Committee is to identify underrepresented groups of association members and remove or reduce unconscious biases with respect to such underrepresented groups. We facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for our judges.

Need for Judicial Independence

Our courts are in need of reform due to unprecedented challenges facing the Immigration Courts and Immigration Judges. This is particularly important, because achieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.

The Immigration Court suffers from an inherent structural defect as it resides in a law enforcement, Executive branch agency – the U.S. Department of Justice (DOJ). The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system. Immigration Judges make life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 538 Immigration Judges in the United States are responsible for adjudicating almost 1,300,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. Many of the individuals brought into proceedings do not have attorneys to represent them despite the fact that the DHS is always represented by attorneys because they have no right to appointed counsel. In contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

The problems compromising the integrity and proper administration of a court underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger agency with competing needs; and eliminating top-heavy agency bureaucracy.

In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most Immigration Judges and attorneys agree the long-term solution to the problem is to restructure the Immigration Court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and

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the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded. To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal would remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions of an adjudicative nature that are currently being performed by the judges and appellate Board members in the Executive Office for Immigration Review.

Questionnaire Response

As of May 19, 2021, there are 538 Immigration Judges (including supervisory Immigration Judges). Of those 313 (or 58.2%) are male and 225 (or 41.8%) are female. Of the 40 Immigration Judges who serve in supervisory/leadership roles, 17 (or 43%) are female. There are 23 Appellate Immigration Judges. In line with international trends where there is more parity for judges overall, but less for high-ranking judicial officers, seven of the Appellate Immigration Judges (or 30%) are female. Currently, EOIR has a female acting agency Director, but the agency has never had a permanent female head. Therefore, while EOIR is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.

During the period 2008 – 2013, the agency identified as a clearly articulated strategic objective the hiring of candidates reflecting gender diversity. We are not aware of an updated strategy for addressing this objective. It is our view that when an agency is helmed by largely homogeneous leaders, there is a lack of varied perspectives which inhibits innovation and insights, workers’ morale suffers, the organization becomes less able to attract and retain top talent, fewer diverse career officials are promoted to management positions, and the problem becomes self-perpetuating. This condition also provides fertile ground for implicit bias to take hold and flourish, infiltrating future recruitment, as well as implicating the decisions we render in the individual cases which come before us.

The Biden administration has made diversifying the federal workforce, including at DOJ, a top priority. We are hopeful that more work will be done in the months ahead to support greater gender parity in judicial roles throughout the agency and the Immigration Court. More flexible workplace options are needed, including expanded telework and flexible working hours, which have proven to be workable and effective during the pandemic. As numerous studies have shown, women bear an overwhelming majority of caretaking responsibilities: for children, elderly parents, and family members who need additional care. Ensuring continuation of the flexible policies the Department of Justice adopted during the pandemic would ensure that more women could take roles as Immigration Judges, or stay in that role long-term, and keep a healthy work-life balance.

In regard to promoting female leadership at the highest levels of EOIR, the agency needs to examine the work culture that is rigid rather than flexible in addressing the unexpected needs of employees, and expects individuals to work long hours and be available to work evenings and weekends. This culture excludes many women who may otherwise bring valuable contributions to top-level agency positions.

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We appreciate your time, and attention to this issue. Sincerely,

Mimi Tsankov

Hon. Mimi Tsankov

Chair, Diversity, Equity, and Inclusion Committee

Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee

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FULL DISCLOSURE: I am a retired member of the NAIJ.

Many thanks to my friend Judge Mimi Tsankov (who also serves with me on the ABA’s National Conference on the Administrative Law Judiciary) for bringing this to my attention.

As Judge Tsankov points out, there has been some progress toward “gender equity” in terms of overall profile. However, in my view, this has been more than offset by 1) the “single sourcing” of judicial appointments to basically discourage and exclude progressive experts, advocates from the private sector, and those with backgrounds in advancing human rights and immigrants’ rights; and 2) constant political interference from the DOJ (under both parties) to promote their political agendas, usually anti-due-process, anti-immigrant, anti-asylum-seeker, and pro-enforcement, with definite overriding racial and nationalist overtones.

Indeed, the sad situation of the NAIJ itself — bogusly “decertified” by “Billy the Bigot” Barr as “punishment” for exercising First Amendment rights, exposing waste and bias, and “daring to speak truth to power” speaks for itself. To date, despite the Biden Administration’s claim to be supportive of the rights of Government employees, Garland has allowed the NAIJ (not to mention asylum seekers and other migrants) to continue to “twist in the wind.”

It’s also worth noting that the NAIJ is the only entity providing meaningful due process and anti-bias training to Immigration Judges. Indeed, it is the only entity providing any type of useful professional training and continuing judicial education at EOIR!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

06-08-21

☠️⚰️POLITICOS, MEDIA CONTINUE TO GET THE BORDER WRONG — By Mary Giovagnoli In MS — “For the present, we must stop pretending that the U.S. can pick and choose when people will leave their countries and ask for asylum at our border.”👎🏻

Mary Giovagnoli · Senior Legal Counsel, Strategy and Special Programs at Kids in Need of Defense (KIND)
PHOTO: Medium.com

The Misery Trump Left at the Border Is Finally Being Revealed – Ms. Magazine
. . . .

Trump supporters and hangers-on boast the “success” of Trump’s immigration policies, demonstrated by the supposed drop in illegal entries. But this is merely an “out of sight, out of mind” approach to managing a very real problem. It was a giant sleight of hand which hid the actual number of people seeking entry into the U.S. Biden’s policies have pulled back the curtain and like so many other aspects of Trump’s administration, it is clear that the claims of success are nothing more than fantasies.

And yet the Biden administration is not off the hook. While it did agree to permit unaccompanied children to enter the U.S. despite the Title 42 ban, it did so following a preliminary injunction issued by a federal court last November. DHS continues to expel families, as well as single men and women, under the existing Title 42 order.

. . . .

Despite the clear moral and legal imperatives to stop Title 42 expulsions, the Biden administration is clearly worried that returning to pre-pandemic processing of asylum seekers will overwhelm the system. It is also clear that they fear a political backlash if critics are able to characterize the border as out of control.

Taking these final steps takes courage and political will. Those of us who support the rights of asylum seekers have to let the administration know that doing the right thing will not tarnish its reputation and that we will work even harder to ensure that making good on humane immigration policy is not political suicide.

Protecting asylum seekers is a woman’s issue of the first order. We must encourage and challenge both the administration and Congress to live up to U.S. obligations. We must turn out at the voting booth to support candidates and elected officials who act on behalf of asylum seekers. And we must push back, every way we can, against those who hope to weaponize the border in a callous effort to turn following the law into a political liability.

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Read Mary’s complete article at the link. Many thanks to Judge Alex Manuel of the ABA’s National Conference of the Administrative Law Judiciary for passing this along.

Surprisingly, “forced migration,” is exactly what it says it is: “FORCED migration” — not optional! As I have pointed out before: “We can diminish ourselves as nation (and are doing so), but it won’t stop human migration.”

Refugees come, because that’s what refugees do. They often come when the world is in crisis, because that’s one of the primary reasons why refugees flee. They seldom come in an orderly manner because flight to save your life doesn’t lend itself to “regularity.” How many Jews perished in Nazi-controlled areas before and during WWII waiting for visas that were never going to come?

And, what brings refugees to our borders actually has little to do with inane statements of politicos, bureaucrats, border cops, and the media. One of the main consequences of illegally “closing the border to asylum seekers” is that large numbers simply enter between ports of entry. Those who used to turn themselves in to the Border Patrol are encouraged by our short-sighted policies and unwillingness to follow our own laws just to keep on going.

We’d certainly do much better if we “canned” all the Trump-era illegal, racist nonsense, reopened border ports to asylum seekers, and encouraged them to apply there or in locations abroad. But, to make that happen we would also have to review their claims in a timely, fair, and humane manner — not “rocket science,” yet something that largely has eluded our nation, particularly since 2014.

It’s achievable. But not without much better leadership coming from experts who actually know how to deal with refugee situations in a humane and effective manner. Failed bureaucrats and grandstanding politicos, those who usually “drive the train heading for a wreck,” can’t do the job! That’s been proved time and again! Why do we insist on repeating all our mistakes? Cruelty and threats simply aren’t effective.

To emphasize Mary’s concluding point about women’s concerns, Jeff “Gonzo Apocalypto” Sessions and Neo-Nazi Stephen Miller made misogyny a focus of their vicious attack on people of color seeking asylum. It started with Sessions’s atrocious decision ignorantly and unlawfully targeting women refugees in Matter of A-B- and continued through Miller’s now-enjoined effort to unlawfully eradicate gender-based asylum grants. Never mind that women form the largest group of clearly identifiable refugees in the world and that femicide and violence against them driven by sexual antipathy and issues of control are rampant worldwide, particularly in the Northern Triangle.

But, a large problem here is that more than two months into the Biden Administration, Attorney General Merrick Garland has yet to repudiate Matter of A-B- and the other debilitating racist and misogynist “precedents” and grotesquely illegal anti-asylum policies of Sessions and Barr. Worse yet, he has neither stood up for the reinstatement of asylum laws and compliance with Constitutionally-required due process at the border, nor has he removed and replaced “his” Board of Immigration Appeals and taken steps to curb those of “his” Immigration “Judges” who are still engaged in furthering the Sessions/Barr White Nationalist, misogynist, anti-asylum agenda!

Interesting lack of action from a distinguished former Federal Judge who several months ago claimed great gratitude that his ancestors were given refuge from harm by the U.S. Is there some reason that those people of color and others now arriving at our borders and claiming legal protections under our laws are less deserving of fair, generous, and humane treatment?

Woman Tortured — Judge Garland’s View Of Proper Treatment of Women Seeking Asylum?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🇺🇸🗽⚖️Due Process Forever!

PWS

04-03-21

⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️🇺🇸MUST-READ FOR TEAM GARLAND @ DOJ: ABA COMMISSION ON IMMIGRATION JOINS CALL FOR INDEPENDENT ARTICLE I IMMIGRATION COURT, MAJOR DUE PROCESS REFORMS, END OF WHITE NATIONALIST KAKISTOCRACY @ EOIR!

Two distinguished Members of the Round Table of Former Immigration Judges serve on the Commission:

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member, Round Table of Former Immigration Judges

Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges, PHOTO: CNN

KEY QUOTE FROM REPORT:

The Executive Branch should work with Congress to establish, through legislation, an immigration court system independent of any federal agency, both at the trial and appellate level. In the ABA’s view, any major court system restructure should have the following goals:

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American Bar Association • Achieving America’s Immigration Promise

(1) Independence – Immigration judges at both the trial and appellate level must be sufficiently independent and adequately resourced to make high-quality, impartial decisions without improper influence, particularly influence that makes judges fear for their job security;

(2) Fairness and perception of fairness – The system must actually be fair, and it must appear fair to all participants;

(3) Professionalism of the immigration judiciary – Immigration judges should be talented and experienced lawyers representing diverse backgrounds; and

(4) Increased efficiency – An immigration system must process immigration cases efficiently without sacrificing quality, particularly in cases where noncitizens are detained.

READ THE COMPLETE REPORT HERE:

ABA Achieving America’s Immigration Promise Final 1.13.21

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As the calls for immediate EOIR reform grow, so does the sense of urgency for those vulnerable individuals (and their courageous, badly abused lawyers) caught up in the current unfair, biased, dysfunctional, and disgracefully misdirected and mal-administered Immigration Courts.

Notably, EOIR “management” has continued its unseemly race to implement a racist, White Nationalist, anti-asylum, anti-lawyer agenda right up until the end! Their latest unlawful regulations were immediately and emphatically enjoined by several Federal Courts.

EOIR has totally screwed up the Immigration Courts by piling up an avoidable backlog that greatly exceeds 1.1 million cases, largely by scheming to deny cases that could be granted, retaining cases that should be closed on their artificially bloated docket, selecting unqualified judges without expertise in immigration, human rights, and due process, and arbitrarily changing priorities and “churning” cases (“Aimless Docket Reshuffling”). They have then had the gutless audacity and intellectual dishonesty to attempt to shift the blame for their gross management and squandering of public resources to their victims: the individuals denied due process and fair hearings and their lawyers!

Additionally, EOIR’s continuing efforts to abuse asylum seekers and their lawyers through illegal and immoral regulations, and DOJ attorneys’ equally unethical “defense of the indefensible,” has continued to waste the time of the Article III Courts. It was obvious that these latest regulations would undermine the incoming Biden Administration’s pledge to reinstate due process and that they were illegal from the “git go!”

This type of arrogantly “in your face Biden, Garland, democracy, and humanity” approach deserves immediate reputation, revocation, and removal of these responsible for the last, disgusting gasps of the “EOIR Clown Show!”🤡 It also demands that some action be taken to deal with the unethical DOJ lawyers 🦹🏿‍♂️🤮who have continued to “press this mess” before the Federal Courts.

A Federal paycheck does NOT exempt lawyers from ethical codes nor is it a license to clog the courts with a frivolous, invidiously intended civil litigation “strategy” designed to “wear down and exhaust” those private, largely pro bono or low bono, lawyers defending due process and the rights of the most vulnerable among us. In civil litigation, the USG does NOT have either a right or an obligation to defend an illegal racist agenda of invidious actions.

The disgraceful performance of all too many parts of the DOJ over the past four years must never, ever be repeated! This is a real, festering problem that “Team Garland” can’t afford to ignore as it takes the helm at the broken and dysfunctional DOJ that has become an actual threat to our democracy and our system of justice and an overt mockery of legal ethics.

Judge Garland, please end the “EOIR Clown Show!” 🤡🦹🏿‍♂️☠️🤮👎🏻🧹🪠 NOW!

⚖️🗽🇺🇸👍🏼Due Process Forever. The “EOIR Clown Show,” 🤡🦹🏿‍♂️🏴‍☠️Never!

PWS

01-17-21

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

KATY MURDZA 👩‍🏫“DE-GOBBLEDYGOOKS” EOIR CLOWN SHOW’S 🤡 PARTING SHOTS AT DUE PROCESS, RATIONAL COURT MANAGEMENT 🤮 — “Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.”

https://immigrationimpact.com/2020/12/03/eoir-rules-immigration-judges/#.X8qg9NhKhPY

Katy writes at Immigration Impact:

The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.

While the rules are not likely to be finalized by the time President Biden takes office, they demonstrate the Trump administration’s continued commitment to dismantling the immigration system.

The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.

The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.

EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.

Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.

The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.

Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.

The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.

For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.

Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.

EOIR states that restricting continuances is necessary to decrease the over 1.2 million cases pending in the immigration court backlog. However, the answer to the backlog is not to throw due process out the window.

Eliminating docket-management tools could worsen the backlog.

Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.

The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.

Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.

FILED UNDER: EOIR, immigration judges

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Thanks Katy!

And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.

Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.

As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!

Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:

Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!

The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.

Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”

While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!

It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!

Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!

Due Process Forever!

PWS

12-06-20

“TORTURE” UNDER U.N. DEFINITION! ☠️— “GOVERNMENT-SANCTIONED CHILD ABUSE!” — WHAT HAVE WE BECOME AS A PEOPLE & A NATION? — AMERICA HAS PUT NOTORIOUS CHILD ABUSERS AND SHAMELESS “PERPS” OF “CRIMES AGAINST HUMANITY” IN CHARGE — We Now Have A Chance To Throw Them Out & Start The Return To Human Decency As An Overriding National Value! 🗽

Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!

Eugene Robinson
Opinion Columnist
Washington Post
Source: WashPost Website

Eugene Robinson @ WashPost:

What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?

This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.

We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.

These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.

Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.

What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.

[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]

The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.

Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.

Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.

Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.

. . . .

Read the rest of Eugene’s article here:

https://www.washingtonpost.com/opinions/do-we-tolerate-the-kidnapping-of-children-this-election-is-our-chance-to-answer/2020/10/22/0f60d17c-1496-11eb-ad6f-36c93e6e94fb

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Elise Foley
Deputy Enterprise Editor
HuffPost
Photo Source: HuffPost.com

Elise Foley @ HuffPost:

President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.

“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”

Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.

Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.

“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”

. . . .

Read the rest of Elise’s article here:

https://www.huffpost.com/entry/trump-debate-family-separation_n_5f924368c5b62333b2439d2b

********************

Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

Ruth Marcus @ WashPost:

545.

That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.

545.

Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.

545.

That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.

545.

That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.

Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.

Those truths could not have been clearer cut than during Thursday night’s debate.

Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”

First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”

No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.

Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”

Welker persisted: “But how will you reunite these kids with their families, Mr. President?”

Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”

This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.

Welker, for the third time: “Do you have a plan to reunite the kids with their families?”

At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”

. . . .

Read the rest of Ruth’s op-ed here:

https://www.washingtonpost.com/opinions/545-children-are-still-separated-from-their-families-what-if-one-of-them-were-yours/2020/10/23/63d3be04-154f-11eb-ba42-ec6a580836ed_story.html

********************

Bess Levin
Politics & Finance Writer
Vanity Fair

Bess Levin @ Vanity Fair:

The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.

Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”

Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”

“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.

“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”

At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”

Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.

With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”

Read the rest of The Levin Report here:

https://mailchi.mp/c4319dce073e/levin-report-trumps-heart-bursting-with-sympathy-for-his-buddy-bob-kraft-2882762?e=adce5e3390

********************

Jacob Soboroff
NBC Correspondent
Jacob Soboroff at the ABC News Democratic Debate
National Constitution Center. Philadelphia, PA.
Creative Commons License

Here’s a video from NBC New’s Jacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”

https://www.msnbc.com/msnbc/watch/soboroff-the-conditions-of-migrant-children-trump-described-as-well-taken-care-of-made-me-sick-94450757764

*********************

And, here’s another video from NBC News’s always incisive and articulate Julia Edwards Ainsley:

https://www.cnbc.com/video/2020/10/21/lawyers-cant-find-parents-of-545-migrant-children-separated-by-the-trump-administration.html

*******************

There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!

PWS

10-25-20

MOSCOW MITCH: TO HELL WITH THE AMERICAN PEOPLE’S SUFFERING, GIMMIE SOME MORE RIGHTY JUDGES! “A common thread among his court picks is that many are young, white, male and hold extreme ideological views on abortion, LGBTQ rights and other civil rights.” PLUS, PWS MINI-ESSAY: “Why The Private Sector Immigration Bar Holds The Key To A Better Article III Judiciary For America“

https://www.huffpost.com/entry/senate-republicans-trump-judges-mitch-mcconnell_n_5f590738c5b67602f5ff84e1

Jennifer Bendery reports for HuffPost:

Hundreds of Americans are dying every day from COVID-19. Unemployment is at 8.4%. Everything is fine.

By Jennifer Bendery

WASHINGTON ― The Senate is back in session after a month of recess and Republicans’ first order of business isn’t a comprehensive coronavirus relief bill. Or emergency stimulus in response to high unemployment. Or legislation addressing nationwide unrest over police violence targeting Black Americans.

It’s confirming more judges.

Senate Majority Leader Mitch McConnell (R-Ky.), who has long said his top priority is getting President Donald Trump’s nominees settled into lifetime federal court seats, didn’t disappoint on Wednesday. At a time when nearly 190,000 Americans have died from COVID-19 and unemployment is at 8.4%, the Senate kicked off its first full day of business with a vote to confirm a district court judge, procedural votes to advance two more district court nominees, another vote to confirm one of those nominees, and two more procedural votes to advance two more district court nominees.

Democrats and Republicans are in a standoff over coronavirus relief legislation. The House passed a sweeping $3 trillion package in May that has gone nowhere in the Senate, where Democrats are ready to pass the House bill but Republicans don’t even agree with each other on what to do. Some prefer no action at all on another coronavirus package because it would add to the growing federal deficit.

McConnell will try to pass a narrowly focused COVID-19 relief bill this week, but it’s purely a political exercise ― an effort to give vulnerable Republicans something to run on ahead of the November elections. It includes funding for small businesses and schools and enhanced $300-a-week unemployment benefits. It leaves out another round of stimulus checks, which Republicans previously supported, and does not include rental assistance or aid to cities and states, which Democrats have insisted on. And it’s not even clear if a majority of Republicans will support the bill.

The Senate Judiciary Committee also met Wednesday for the first time in more than a month. The panel, led by Sen. Lindsey Graham (R-S.C.), has jurisdiction over a number of issues related to the health and economic fallout from COVID-19. Graham could, for example, hold hearings that looked at the needs of state and local law enforcement on the front lines of the pandemic. He could hold hearings on the health and safety of corrections staff and incarcerated people. He could hold hearings on changes in immigration policy tied to the pandemic.

Instead, the committee held a hearing to advance five more of Trump’s judicial nominees.

One of those nominees isn’t even qualified to be a federal judge, according to the American Bar Association. Just as the hearing got underway, the ABA released an embarrassing “not qualified” rating for Kathryn Kimball Mizelle, Trump’s nominee for a seat on the U.S. District Court for the Middle District of Florida.

“The nominee presently does not meet the requisite minimum standard of experience necessary to perform the responsibilities required by the high office of a federal trial judge,” reads the ABA’s review of Mizelle’s nomination.

. . . .

Mizelle, 33, is eight years out of law school and has practiced law for four years. She has participated in a total of two trials (as a law student) and has not tried a case, civil or criminal, as lead or co-counsel.

. . . .

“This nominee has been put forward not only because she is an ultraconservative ideologue, but also because she is a Trump loyalist, having worked in the Trump Justice Department to dismantle many critical civil rights protections,” reads a Tuesday letter to senators from the Leadership Conference on Civil and Human Rights, a coalition of more than 220 national civil rights groups. “The Senate must reject her nomination.”

Trump’s most lasting legacy will arguably be his judges, who will sit on the nation’s courts for decades after he’s left the White House. He has had confirmed a total of 204 Article III judges, including two Supreme Court justices, 53 appeals court judges and 147 district court judges. A common thread among his court picks is that many are young, white, male and hold extreme ideological views on abortion, LGBTQ rights and other civil rights.

*******************

Read the complete article at the link.

Why The Private Sector Immigration Bar Holds The Key To A Better Article III Judiciary For America

By Paul Wickham Schmidt

Courtside Exclusive

Sept. 10, 2020

Hey, Hey, Ho, Ho, the Trump regime🏴‍☠️ has got to go!

And that includes Moscow Mitch and every GOP Senator on the ballot this Fall. The serious long-term damage they have inflicted on our nation is already catastrophic! Let’s not let it become fatal!

Our sinking “Ship of State,” including the failing Federal Judiciary that is largely unrepresentative of our diverse nation, too often lacks engagement with the “human face” of our justice system, and sometimes demeans our best humane national values, can still be saved and put the on the correct course.

It won’t be easy. It won’t happen overnight, particularly with the life-tenured judiciary. But, it must start in November. Remember, the law is about humanity, fairness, and equatable human relations, as embodied in the due process and equal protection clauses of our Constitution.

It’s not the dusty, musty, wooden, racially tone deaf, sometimes intentionally unfair, anti-civil-rights, anti-human rights, and often contrived “anti-social ideologies of the right” that blind a disproportionate number of Trump-Mitch appointees and enable lawless, fundamentally anti-American tyrants like Trump and his cult of sycophants to run roughshod over our country, our national values, and human decency.

Yesterday, Courtside highlighted the monumental achievements of a real American legal heroine and superstar, Attorney Sarah Owings of Atlanta, Georgia. She could have done other things with her skills and her career. Instead, she devoted herself to “working in the trenches of the law,” laboriously making an intentionally unfair and dysfunctional system fairer, and preserving the rights and saving the lives of some of the most vulnerable among us.

That’s what a real lawyer does. Disgracefully, these are the folks now largely missing from our elitist, out of touch with humanity Federal Bench.

Compare her “real life” qualifications, contributions, and courage with those of a strikingly unqualified, lightweight right wing dilettante like Mizelle. That’s one reason why our nation and our judiciary are in failure right now. Lack of leadership and lack of moral courage and human values. It’s literally killing individuals across our nation, a disproportionate number of them people of color. It must stop. Social justice can no longer be demeaned and demolished by those in charge!

It’s past time to stop “undervaluing and ignoring” the outstanding ”practical scholarship” (see, “Law You Can Use”), great courage to speak truth to power, energy, dedication, “retail level litigation skills,” and creative problem solving abilities of the private sector immigration bar, many serving in pro bono, low bono, clinical, or NGO capacities, in Federal Judicial Selection.

As tell law students, “if you can win an asylum case in today’s conditions, everything else you do in law will be a piece of cake.” There are good reasons why some of the largest law firms in America have found pro bono Immigration Court work to be some of the greatest “real life legal training” out there! Also, good reasons why some of the best legal minds and legal strategists in America are working pro bono on amicus briefs for our Round Table of Former Immigration Judges!

A new, independent, Article I Immigration Court with a “merit-based” judicial selection system should be the ideal training ground and future selection pool for a better, fairer, more efficient, more diverse, more representative, and more effective Article III Judiciary. One that would have an unswerving commitment to Constitutionally required “equal justice under law.” A judiciary that would fairly and efficiently solve problems rather than avoiding and often aggravating them! An Article III Judiciary that would actually understand and appreciate immigration and human rights laws and their fundamental connection to the goal of equal justice for all!

The talent necessary to stop the bleeding and vastly improve the American justice system is out there. What’s lacking right now is the leadership and political power to make a better future a reality, for all Americans.

We must take back our nation, before it’s too late for humanity!

Better Federal Judges for a better America!⚖️🗽

Due Process Forever!

PWS

09-10-20

😎🗽⚖️👍🏼MORE GOOD NEWS FOR THE GOOD GUYS! — Ira J. Kurzban 🏅 To Receive Leonard J. Theberge Award 🏆 for Private International Law From ABA Section of International Law!🍾🥂🍻

Ira Kurzban ESQUIRE
Legendary American Immigration Lawyer

Peggy Taylor reports for the Section:

I am writing to let you know that the ABA Section of International Law will be awarding Ira the distinguished Leonard J. Theberge Award for Private International Law. The award is in memory of Section Chair Theberge (1979-1980). The Section established the award to honor persons who have made distinguished, long-standing contributions to the development of private international law.

Obviously, Ira more than deserves this award. Anyone practicing immigration law for more than two minutes knows about Ira — not only about his invaluable Sourcebook but also his cutting edge litigation, his contributions to immigration law scholarship, and his genuine support of the immigrant community.

The Section will honor Ira in a virtual ceremony on Friday, 7.31.2020 at 12:00 pm ET. I hope you can attend the ceremony. I am pasting a registration link at the end of this email. Also, I am copying the current and incoming Section Chairs on this email.

Please join me in congratulating Ira! It has been my honor to work with Ira and each of you on the Crystal Ball Panel. Be well and safe. Best. Peggy

Dear All – Writing with schedule information I received about Ira’s award. The award ceremony is part of a Section Council Meeting. While the meeting starts at 12:00 pm, the awards ceremony part of the meeting will probably not start until around 2:30 pm. Best. Peggy

Register here.

**********************

Thanks, Peggy!

Here are a few of the tributes from our fellow “panel members:”

Congratulations, Ira! Well deserved. I am actually old enough to remember when Ira was listed among the 40 lawyers under 40 to watch! Seems like yesterday!

__________________________

Paul W. Virtue

Mayer Brown LLP

**********************

A giant in the field — and an indispensable part of every immigration lawyer’s professional journey.

Hon. Mimi Tsankov

U.S. Immigration Judge

V.P. Eastern Region NAIJ

(Personal Capacity Only)

***********************

Many, many congrats to our friend and colleague Ira for his lifetime commitment to human rights and furthering legal excellence!

Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

immigrationcourtside.com

Congratulations again, Ira, on behalf of all your many admirers in the New Due Process Army (NDPA) in which you are a Five Star General 🎖🎖🎖🎖🎖!👍🏼😎

PWS

07-19-20

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

By Paul Wickham Schmidt

Special to Courtside

June 14, 2020

Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules.

If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”

Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel? Absolutely not! This system operates right here in our United States of America, right now.

It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.

It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition.

No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted “Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.

In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!

It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.

The three things I would do right up front are:

First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.

Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.

Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).

Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!

This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.

Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/

Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:

April 28, 2020 HUMAN RIGHTS

Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul

The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

by Hon. Mimi Tsankov

Share this:

“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”

—Senator Sheldon Whitehouse

So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.

The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).

Whitehouse recounted a sentiment articulated previously by a host of legal community leaders for more than a decade, not the least of which was ABA President Judy Perry Martinez, who in a recent statement before the U.S. Congress explained that housing a court within a law enforcement agency has exacerbated an inherent conflict of interest undermining “the basic structural and procedural safeguards that we take for granted in other areas of our justice system.” See, Am. Bar. Assoc., 2019 Update Report: Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (Mar. 2019). As she explained, “this structural flaw leaves Immigration Judges particularly vulnerable to political pressure and interference in case management.” Martinez Testimony, supra, at 1.

It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.

One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).

An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.

Thomas Cizauskas from Flickr

Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.

These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).

. . . .

Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.

**************************

Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩‍⚖️👍🏼

The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.

These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.

While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!

Due Process Forever! Complicit Courts & Star Chambers, Never!

This November, vote like your life depends on it! Because it does!

PWS

05-02-20

WHERE JUSTICE IS BLIND, DEAF, & REALLY, REALLY DUMB — AMERICA’S COURTS FLUNK CORONAVIRUS TEST — ROBERTS’S FECKLESS LEADERSHIP — AILA CALLS FOR CLOSING ALL IMMIGRATION COURTS!

https://slate.com/news-and-politics/2020/03/courts-coronavirus-spread.html

Mark Joseph Stern reports for Slate:

For weeks, public health officials have warned that the coronavirus will spread rapidly in the United States but the infection rate could slow with social distancing and severe restrictions on mass gathering. The nation’s judiciary did not listen. Civil, criminal, and immigration courts continued to operate normally, with very few exceptions, until late last week. Even on Monday, after both the president and most governors had declared a state of emergency, a huge number of America’s courts continued to operate, forcing judges, attorneys, litigants, defendants, immigrants, and court staff into close quarters with potentially infected individuals. Conversations with more than two dozen lawyers and court staff (who requested anonymity to avoid professional blowback) across the country reveal a system that is disastrously unprepared for a pandemic—and facilitating the coronavirus’s spread.

Because the American judiciary is so decentralized, there is no single contingency plan that governs all courts in case of an emergency. Most state and federal courts are making up their own rules as they go. All 94 federal district courts and 13 federal appellate courts are scrambling independently to devise a strategy for COVID-19. In many states, individual trial and appeals courts are also struggling to meet their legal obligations without contributing to the spread of the virus. Immigration courts are under the control of the discombobulated and ineffectual Trump administration. So are agencies, like the Social Security Administration, that hold administrative hearings to adjudicate individuals’ access to public assistance. Meanwhile, thousands of jails, prisons, and immigrant detention facilities remain unwilling or unable to meaningfully address COVID-19, putting both detained people and staff at risk of infection. The legal system is actively jeopardizing millions of people’s health and lives.

The legal system is actively jeopardizing millions of people’s health and lives.

State judiciaries’ sluggish response to the crisis was on display Monday in courtrooms around the country. Slate spoke with defense attorneys in Florida, New Jersey, New York, North Carolina, Washington state, and the District of Columbia who witnessed large groups of defendants congregating in courthouses after police arrested them for low-level offenses. Many people had been jailed for at least one night for crimes like driving without a permit and possession of drug paraphernalia. In northern New Jersey, according to an attorney who was present, a prosecutor argued on Monday that defendants are, in fact, safer from the virus behind bars. But a defense attorney in the region told Slate that her clients in jail have no access to soap or toilet paper.

. . . .

As of Monday, federal district courts around the country were still in operation, though many had suspended jury trials. Chief Justice John Roberts, the head of the federal judiciary, has not issued public guidance to these courts, leaving them to fend for themselves. The chief judge of each federal district court must decide when, and if, to shutter completely. Similarly, the chief judge of each federal appeals court must determine how, and if, to hold oral arguments, and how to keep deciding cases in spite of the interruption. The Supreme Court has canceled March’s oral arguments.

Many immigration courts, which are controlled by the Executive Office for Immigration Review at the U.S. Department of Justice, were still operating on Monday too. EOIR cancelled all master calendar hearings on Sunday—these are short hearings, scheduled months or years in advance, that typically begin the deportation process. But courts are still holding other kinds of hearings, except in Seattle, whose immigration court has shut down entirely. According to a DOJ official at the Los Angeles Immigration Court, the agency has failed to provide employees with any meaningful guidance. This official told Slate that last week, a court administrator told staff that COVID-19 is “like the flu” and “not a big deal.” All last week, she said, “people were coming into courtrooms sick.” EOIR was just beginning to develop a telework plan on Monday and was withholding all information about future operations from staff.

An employee at the New York City Immigration Court spoke of similar disarray. This individual told Slate that her supervisor ignored repeated pleas to mitigate the risk of infection to staff. Immigrants with symptoms of COVID-19 have repeatedly appeared in court. When judges canceled hearings for the day to limit exposure to these individuals, this supervisor reportedly expressed anger that they had not simply moved to a different courtroom.

On Sunday, the union representing Immigration and Customs Enforcement prosecutors joined immigration judges and lawyers to call on the Department of Justice to shutter immigration courts entirely. This unprecedented alliance of frequent foes condemned the DOJ’s response as “insufficient” and “not premised on transparent scientific information.” (The agency has yet to answer this letter.)

There are currently more than 50,000 individuals in immigrant detention. There are already coronavirus outbreaks cropping up at these detention facilities. But the government has put forth no comprehensive plan to test and treat patients. The same is true for inmates in state and federal facilities. A defense attorney in King County, Washington—a COVID-19 hot spot—told Slate on Monday that “there is no plan to protect people in jail from coronavirus. People are still held on nonviolent charges, and people are still cycling through on all sorts of minor charges.” As long as police continue to arrest individuals for low-level offenses, these people will be put in jail and then sent to a courthouse. Even if prosecutors decline charges, these individuals may have already been exposed to the virus and could spread it.

. . . .

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Read the complete article at the link.

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Here’s the latest from Laura Lynch over at AILA:

The Honorable William P. Barr Attorney General

U.S. Department of Justice

James McHenry

Director

Executive Office for Immigration Review

Matthew T. Albence

Deputy Director and Senior Official

U.S. Immigration and Customs Enforcement

Submitted via email

March 16, 2020

Dear Attorney General Barr, Director McHenry, and Deputy Director Albence,

The American Immigration Lawyers Association (AILA) is writing to follow up on our March 12, 2020 letter requesting that Immigration and Customs Enforcement (ICE) immediately implement procedures for the prevention and management of COVID-19 and our March 15, 2020 statement calling for the emergency closure of the nation’s immigration courts, sent in conjunction with the National Association of Immigration Judges (NAIJ) and the American Federation of Government Employees (AFGE) Local 511 (the Immigration and Customs Enforcement (ICE) Professionals Union).

We appreciate the important measures already taken by the Department of Homeland Security (DHS) and the Department of Justice (DOJ), including the suspension of non-detained master calendar hearings. However, the evolving nature of this crisis demands more aggressive action. Since our initial letter to ICE, President Donald Trump proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. States and localities across the country have suspended school, put in place restrictions on the size of gatherings, closed restaurants and bars, and shut down tourist activities.

DOJ and DHS must acknowledge the severity of this pandemic, and take the following steps to protect DOJ employees, DHS employees, respondents, representatives, interpreters, experts, and other immigration court stakeholders, as well as the general public:

• Immediately Close Immigration Courts: DOJ should immediately close immigration courts for a minimum of two to four weeks so that public health officials have an opportunity to test and gain valuable information about who can transmit the COVID-19 virus and to reassess how to ensure a safe environment for immigration court hearings.

AILA Doc. No. 20031666. (Posted 3/16/20)

• Hold Telephonic Bond Hearings and Stipulate to Bond in Writing: DOJ should proceed with fully telephonic bond hearings so that detained individuals who are eligible can be released from custody as soon as possible and allow supporting documents to be faxed and emailed to the appropriate clerk. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.

• Cancel ICE Check-Ins: ICE should cancel and/or reschedule all OSUP and/or ISAP appointments that are scheduled for at least the next 60-90 days and extend the same for several months as conditions warrant.

• Immediately Release Anyone With Vulnerabilities from Custody: ICE should immediately release vulnerable populations from ICE custody, including people 60 and over, pregnant people, and people with chronic illnesses, compromised immune systems, or disabilities, and people whose housing placements restrict their access to medical care and limit the staff’s ability to observe them.

• Decrease the Number of People in Detention to Limit Exposure: ICE should liberally use its discretion to release individuals from custody and decrease the overall ICE population, including through the increased use of parole authority, stipulating to bond in written motions, and use of alternatives to detention (with no check-in requirements for thirty days or more).

• Take Proper Care to Prevent Transmission in Custody: ICE should immediately test detainees who exhibit any symptoms and/or present risk factors, as delayed confirmation of cases will necessarily be too late to prevent transmission. ICE should also provide proper hygienic supplies at all ICE detention and check-in facilities, allowing easy access to all detained persons, the population under ICE supervision, and ICE staff. ICE should halt transfers from facility-to-facility and to out-of-state locations in order to prevent the spread of the coronavirus throughout individual states and the U.S.

• Allow Stays of Removal and Other Emergency Motions to Be Submitted Via Mail: ICE should allow requests for stays of removal, and other emergency motions, to be submitted by mail instead of requiring an in-person filing with the applicant present.

• Issue a Blanket Extraordinary Circumstances Exception for One-Year Filing Deadlines: DOJ should issue a blanket extraordinary circumstances exception for asylum one-year filing deadlines that fall from March 1, 2020 (the beginning of the National Emergency) through the reopening of immigration courts.

2

AILA Doc. No. 20031666. (Posted 3/16/20)

• Provide Flexibility on All Deadlines: ICE and DOJ should liberally agree to and/or grant requests to extend filing deadlines based on imposition of remote work, loss of staff, necessity for child, elder, and family care based on school and institutional closures.

• Commit to Flexibly and Favorably Addressing COVID—19-Caused “Age Outs” on a Case-By-Case Basis. In the context of cancellation of removal for nonpermanent residents under INA § 240A(b), the Board of Immigration Appeals has acknowledged its ability to review the particular facts in a case in addressing a respondent’s argument that the age of qualifying relative should be “frozen” prior to the final administrative decision. Matter of Isidro, 25 I&N Dec. 829, 832 (BIA 2012) (rejecting respondent’s contention that age should be locked where there was no “undue or unfair delay” in the course of proceedings); see also Martinez-Perez v. Barr, No. 18-9573 (10th Cir. 2020) (BIA has jurisdiction and authority to interpret cancellation statute in a way that fixes the age of respondent’s daughter in light of undue or unfair delay).

• Stipulate to Relief When Appropriate, Especially in Detained Cases: ICE should stipulate to relief in cases where individual hearings are already scheduled, but must be re-calendared based on COVID-19 disruptions, and where the record in itself demonstrates that the respondent has meaningfully met her burden of proof based on a well-developed record of proceedings and evidentiary submissions that compel a grant of relief from removal.

• Parole Respondents in the Remain in Mexico Program: DHS should parole all respondents in the Remain in Mexico program (also known as MPP) into the U.S. on the date of their scheduled immigration court hearing date and provide them with a new hearing date in a non-detained court. At a minimum, EOIR must work with CBP to issue a new EOIR hearing notice and CBP must provide the respondent with both the new EOIR hearing notice and an MPP tear sheet. If the respondent does not have an MPP tear sheet containing a future U.S. immigration court date, the respondent would be out of status in Mexico and Mexico’s migration institute (INM) will likely refuse to renew the individuals’ temporary status in Mexico.

We respectfully request a response as soon as possible given the emergent circumstances. Please feel free to contact Kate Voigt (kvoigt@aila.org) with questions.

Sincerely,

THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION

CC: Barbara M. Gonzalez, Assistant Director, ICE Office of Partnership and Engagement; Richard A. Rocha, ICE Spokesperson; Lauren Alder Reid, Assistance Director, EOIR Office of Policy.

3

AILA Doc. No. 20031666. (Posted 3/16/20)

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So, the spread of the coronavirus worldwide was months in the making. Why didn’t Roberts convene a meeting of the Judicial Conference, the Administrative Office, and the ABA to come up with an emergency plan?

Why didn’t EOIR, which has time for endless counterproductive “management” (actually “mismanagement”) nonsense (how about “judicial dashboards” for a mindless waste of time and money?), get together with the NAIJ, ICE, and AILA months ago to develop an emergency response plan for the Immigration Courts? No, the “powers that be” at EOIR were too busy trying to “decertify” the NAIJ with frivolous and unethical litigation.

The recent joint action by the NAIJ, AILA, the ICE union is a prime example of the way in which an Independent Article I Immigration Court, free of DOJ political mismanagement and improper influence, will foster cooperation, implement best practices, further efficiency, and make due process and fundamental fairness realities, not overnight, but certainly over time. https://immigrationcourtside.com/2020/03/15/as-eoir-dithers-immigration-professionals-take-cooperative-action-immigration-judges-prosecutors-and-attorneys-call-for-the-nationwide-closure-of-all-immigration-courts/Due process with humanity and efficiency! The “post-regime future” of an independent Immigration Court holds great promise and unlimited potential for good government and public service if we can only “get there!”

Once this emergency is over, America also needs a top to bottom re-examination of the leadership and administration of our diverse judicial systems. As a whole, they are obviously “not quote ready for prime time” (“NQRFPT”) when it comes to protecting the public or using technology for the common good.

Obviously, at many levels, Federal, State, and Local, we have some of the wrong people serving as judges. First and foremost, the law is about humanity and protecting and saving lives to the greatest extent possible. That’s a fundamental human message that Roberts and many other right wing judicial zealots, out of touch with the needs of the public and wedded to stilted semi-absurdist and contrived interpretations of the law, simply don’t get. America needs better judges, with some empathy, humanity, and common sense! Again, it won’t happen overnight, but we have to start somewhere to get anywhere in the future!

PWS

03-16-20

ARTICLE I: National Association of Women Judges (“NAWJ”) Advocates Independent U.S. Immigration Court

Round Table superstar Judge Joan Churchill reports:

The letter has been addressed to the Chairs and Ranking Members of both the Senate and HR Judiciary Committees, as well as to the HR Immigration Subcommittee, and to Senator Whitehouse of the Senate Judiciary Committee, who sent a letter last month to the AG, cosigned by several other members of the Senate Judiciary Committee, expressing concerns about due process at the Immigration Courts. There are 7 letters, attached below for your records.

Because all seven letters are similar in content, I’m linking and reprinting only the one to Chairwoman Zoe Lofgren of the House Subcommittee on Immigration & Citizenship.

Zoe Lofgren, Chair, HR Immigration Subcommittee

NATIONAL ASSOCIATION OF WOMEN JUDGES

1001 Connecticut Avenue, N.W., Suite 1138, Washington, D.C. 20036 T: (202) 393-0222 W: www.nawj.org

February 28, 2020

The Honorable Zoe Lofgren

1401 Longworth House Office Building Washington, D.C. 20515

Dear Representative Lofgren:

In your role as Chair of the House Committee on the Judiciary’s Subcommittee on Immigration and Citizenship, the National Association of Women Judges [NAWJ] writes in support of the creation of an independent Immigration Court. We respectfully call on Congress to establish an Article I Immigration Court system that is independent of the Department of Justice, or any other prosecutorial agency, in order to guarantee due process and a fair hearing with justice for all.

Currently, the Immigration Courts are housed in the U.S. Department of Justice’s Executive Office for Immigration Review [EOIR], which manages Immigration Courts at both the trial and appellate levels.

1

This structure presents an inherent conflict of interest. The Immigration Courts are adjudicatory bodies

tasked with providing due process hearings to respondents in removal proceedings. It is essential that its judges be neutral adjudicators who are not subject to the policy making chain of command of an executive agency, or to direction by a party to the cases before them.

NAWJ has been the leading voice of women jurists across the country for over forty years. Founded in 1979, our non-partisan membership includes over 1,000 judges, women and men, serving at all levels of the state and federal judiciary. Our membership includes judges on administrative, military, tribal, and other specialized courts, in addition to the regular state and federal courts. NAWJ has, since our founding, championed the advancement of women and minorities in the legal profession, the independence of the judiciary, and equal access to justice.

NAWJ’s support for an independent Immigration Court outside the Department of Justice is long standing. We adopted a resolution in support on April 16, 2002 stating that:

1 The appellate level of the Immigration Court system is known as the Board of Immigration Appeals or BIA.

Chair Zoe Lofgren Page Two

“The NAWJ supports an independent structure for the Immigration Courts (at both the trial and appellate levels) outside the Department of Justice, to assure fairness and equal access to justice, and to assure both the appearance and reality of impartiality.”

We followed up with another resolution adopted on October 18, 2008 stating:

“The National Association of Women Judges supports the enactment of federal immigration legislation that provides for full and fair administrative adjudication and review of deportation orders.”

We are pleased to hear that Congress is currently considering introduction of legislation on this important topic.

Due process by adjudicatory tribunals requires case by case adjudication in which a neutral decision maker, using his/her independent judgment, renders a decision based entirely on the record before him/her, the facts of the case, the submissions of the parties, and the governing law and regulations, without direction from above or consideration of outside (ex parte) influences. The current structure of the Immigration Courts, however, presents a systemic problem to neutral adjudication, as the structure allows:

(1) a supervisory role regarding the content of Immigration Judges’ rulings and

decisions, as a factor in their performance evaluations, and

(2) participation in the adjudicatory process by policy makers who are, in turn,

answerable to one of the parties, an executive agency of the Government.

We respectfully urge Congress to establish an independent Immigration Court system, under Article I of the United States Constitution, that would assure due process and judicial independence.

Thank you for consideration of our views. Sincerely,

The Honorable Bernadette D’Souza President

National Association of Women Judges

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For those of you who don’t already know my long-time friend and colleague Judge Joan Churchill, here is a little background.

Joan and I worked together as Attorney Advisors at the BIA in the early 1970s. She was the leader of the movement to start an employees’ union at the BIA, largely to insure fair and respectful treatment of our support staff. I was a “charter member,” and Joan served as our first President.

Later, after becoming one of the first women Immigration Judges at the “Legacy INS,” Joan served as the President of the Immigration Judges’ Association, the predecessor to the National Association of Immigration Judges. Among her many accomplishments, Joan successfully, and almost single handedly, argued the “Due Process case” against an INS proposal to take asylum cases out of Immigration Court and assign them exclusively to the newly created Asylum Office.

Later in our careers, Joan and I were “reunited” as colleagues at the Arlington Immigration Court. I was the “keynote speaker” at her retirement ceremony.

Following retirement, Joan hasn’t missed a beat. She served as President of the NAWJ and has actively and effectively pressed the case for Article I status as a member of the ABA National Conference on the Administrative Judiciary (of which I also am a member). Undoubtedly, Joan’s efforts were a key factor in getting such strong support for the Article I proposal from the ABA.

All of us who served as Immigration Judges and believe in the fundamental value of Due Process under law owe a debt of gratitude to Joan for her courageous, effective, pioneering work and her continued involvement in fulfilling the one-time “EOIR vision” of “through teamwork and innovation, being the world’s best administrative tribunals insuring fairness and due process for all.”

I might add, that it wasn’t always easy for Joan who has constantly demonstrated courage, an incredible work ethic, and “grace under fire.” But, that’s another story.

For now, I’m just thankful to be able to call Joan a friend and colleague and to continue to benefit from her wisdom, scholarship, and hard work in behalf of all of us in the Round Table of Former Immigration Judges.

Well done, my friend and colleague!

Due Process Forever; “Captive” Courts Never!

PWS

03-10-20

CHILD ABUSE: New EOIR Program Puts Kids On Deportation Assembly Line!

https://www.abajournal.com/news/article/aba-president-calls-for-end-to-new-video-teleconference-program-for-unaccompanied-children

Amanda Robert reports for the ABA Journal:

ABA President Judy Perry Martinez joined leaders from Kids in Need of Defense on Wednesday in condemning a new pilot program at the Houston Immigration Court that requires all cases involving unaccompanied immigrant children to be heard via video teleconference.

Under the program, the Trump administration calls for the testimony of unaccompanied children to be streamed from Houston to Assistant Chief Immigration Judge Sirce Owen, who will hear cases in Atlanta. The program will begin March 9 and last for about two months.

“What is about to happen in Houston is wrong,” Martinez said during a briefing on the program. “It will hurt children and is contrary to the American pursuit of justice. The American Bar Association opposes the policy, and we need action against it now.”

Martinez explained that the ABA Commission on Immigration has extensive experience with children in immigrant courts and created standards of care and conduct based on its experience. She said that among those standards is a strong opposition to video teleconferencing in immigration proceedings involving children.

She recalled visiting a children’s shelter during one of her trips to volunteer with the ABA’s South Texas Pro Bono Asylum Representation Project. She thought then about what runs through the mind of an unaccompanied child who just entered the United States and must go to court.

“For a child, it must be truly troubling, if not terrifying—especially for a child who doesn’t speak English, who doesn’t know what to expect in a U.S. courtroom and who may not have a lawyer or other trusted adult to guide him or her,” she said. “Imagine how much more bewildering that experience must be for a child in a courtroom with no judge in person, live there with them. Only a small TV screen.”

*****************

Read the rest of the article at the above link.

Ah, picking on children, rather than trying to insure Due Process. There’s a name for those who pick on the most vulnerable.

PWS

03-07-20

HOUSE SUBCOMMITTEE SCHEDULES HEARING FOR TOMORROW (01-29-20) ON DUE PROCESS DISASTER IN U.S. IMMIGRATION COURTS!

https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2757

Hearings

Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts

Subcommittee on Immigration and Citizenship

Date: Wednesday, January 29, 2020 – 09:30am

Location: 2141 RHOB

Tags: Immigration and Citizenship

Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts

Witnesses

X The HonorableAndrew R.Arthur

Y Resident Fellow in Law and Policy, Center for Immigration Studies

X Mr.JeremyMcKinney

Y Second Vice President, American Immigration Lawyers Association

X Ms.JudyPerry Martinez

Y President, American Bar Association

X The HonorableA. AshleyTabbador

Y President, National Association of Immigration Judges

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You can watch live tomorrow by clicking the above link.

The Subcommittee should get an earful from the last three witnesses on the absolute national disgrace and mockery of Constitutional Due Process taking place daily in these weaponized and “captive” courts.

Due Process Forever!

PWS

01-28-20

MEET THE PRESS: NAIJ President Hon. A. Ashley Tabaddor & Others Appear @ National Press Club To Explain Need For Independent Article I U.S. Immigration Court In Light Of Trump Administration’s All-Out Assault On Due Process!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Dear NAIJ Members,

On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.

Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.

ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.

Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.

The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.

Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:

https://spaces.hightail.com/receive/RRowcRdtrK

For a sampling of the articles, please check out the NAIJ website at:

https://www.naij-usa.org/news

If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.

Sincerely,

Your NAIJ Executive Board

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Keep up the fight!

Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!

PWS

10-03-19

IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control

Julia Preston reports for The Marshall Project:

By JULIA PRESTON

A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.

Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.

“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.

In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.

The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.

Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.

Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.

The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.

But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.

The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”

The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.

Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.

Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.

In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.

What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.

To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.

“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.

“If judges get into that red, they can lose their job,” Slavin said.

Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.

Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.

The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.

Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.

Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.

The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”

Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.

************************************

Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!

Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!

Also, the 975,298 “docketed” cases in the backlog (according to TRAC, as of 07-31-19) DOES NOT include most of the approximately 330,000 “Administratively Closed” cases that Sessions and Barr have idiotically tried to “force” back on the already-backlogged dockets. This week, the Fourth Circuit “called out” this illegal nonsense by emphatically rejecting Sessions’s scofflaw ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). This development was reported in “Courtside” yesterday. https://immigrationcourtside.com/2019/08/29/gonzo-apocalyopto-slammed-unanimous-panel-of-4th-cir-rejects-matter-of-casto-tum-exposes-irrationality-of-biased-unqualified-restrictionist-former-ag/.

Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.

It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.

Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.

PWS

08-30-19

FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸🗽⚖️Due Process Forever!

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Two distinguished Members of the Round Table of Former Immigration Judges serve on the Commission:

Judge Garland, please end the “EOIR Clown Show!” 🤡🦹🏿‍♂️☠️🤮👎🏻🧹🪠 NOW!

⚖️🗽🇺🇸👍🏼Due Process Forever. The “EOIR Clown Show,” 🤡🦹🏿‍♂️🏴‍☠️Never!

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Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!

Due Process Forever!

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Why The Private Sector Immigration Bar Holds The Key To A Better Article III Judiciary For America

By Paul Wickham Schmidt

Courtside Exclusive

Sept. 10, 2020

Hey, Hey, Ho, Ho, the Trump regime🏴‍☠️ has got to go! And that includes Moscow Mitch and every GOP Senator on the ballot this Fall. The serious long-term damage they have inflicted on our nation is already catastrophic! Let’s not let it become fatal!

Better Federal Judges for a better America!⚖️🗽

Due Process Forever!

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Congratulations again, Ira, on behalf of all your many admirers in the New Due Process Army (NDPA) in which you are a Five Star General 🎖🎖🎖🎖🎖!👍🏼😎

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Due Process Forever! Complicit Courts & Star Chambers, Never!

This November, vote like your life depends on it! Because it does!

PWS

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Due Process Forever; “Captive” Courts Never!

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Due Process Forever!

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Hey, Hey, Ho, Ho, the Trump regime🏴‍☠️ has got to go!

And that includes Moscow Mitch and every GOP Senator on the ballot this Fall. The serious long-term damage they have inflicted on our nation is already catastrophic! Let’s not let it become fatal!