REBEKAH WOLF @ AMERICAN IMMIGRATION COUNCIL ECHOES MY CRITICISM OF GARLAND’S INEXCUSABLE FAILURE TO PROMOTE DIVERSITY, SELECT PROGRESSIVE EXPERTS IN INITIAL IJ PICKS — A Wasted Opportunity That Neither Progressives Nor The Biden Administration Can Afford!

https://immigrationimpact.com/2021/05/13/immigration-judges-under-biden/

First Round of Biden Immigration Judges Fails to Increase Diversity

Posted by Rebekah Wolf | May 13, 2021 | Due Process & the Courts, Immigration Courts

The Biden administration announced its first round of immigration judge appointments on May 6. Unfortunately, the immigration court appointments do not show the commitment to diversity that President Biden has demonstrated in his federal court appointments.

All of the new judges had received conditional offers from the Trump administration. The current administration was under no obligation to continue with the appointments, however. Advocates expressed disappointment in the hires and lack of balanced perspectives and backgrounds. Most of the 17 new immigration judges have experience as prosecutors and/or working for U.S. Immigration and Customs Enforcement (ICE)—and no experience defending immigrants.

Of the 17 new immigration judges, seven have worked for ICE and five have worked as prosecutors. Only two have worked as immigration defense attorneys, both of whom have also worked for ICE. The perceived bias of having worked for years on one side is concerning enough. But many of the appointees also do not have the substantive knowledge some believe is necessary for the position.

Former Immigration Judge Paul Schmidt commented on the appointments, saying:

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring.”

The appointments include one Assistant Chief Immigration Judge (ACIJ) and six supervisory Unit Chief Immigration Judges (UCIJs), a newly invented position. The UCIJs, only one of whom has a background in immigration law, will be working from a new Immigration Adjudication Center (IAC) in Richmond, Virginia. Like at the two existing IACs, these new immigration judges will hear cases by video-teleconference in office buildings that are closed to the public. Litigation is pending over the government’s failure to provide public information on IACs.

Immigration judge appointments strongly affect immigration court decisions. The Trump administration appointed approximately two-thirds of the 520 current immigration judges. With these new judges and along with significant court policy changes, the asylum denial rate increased from 54.6% in fiscal year 2016 to 71.6% in fiscal year 2020.

The number of immigration judges Biden appoints will also affect the immigration court backlog, currently at 1.3 million cases. Biden’s proposed budget calls for hiring 100 new immigration judges, which many experts say is insufficient. Still, the need for expediency in hiring additional judges cannot outweigh the need for a balance of experience on the bench.

Over a million people are involved in an immigration court system that is inconsistent and unfair. The Biden administration should apply its commitment to judicial diversity to immigration judge appointments, especially a diversity in perspectives and experience.

Ultimately, immigration courts will not be free of the bias inherent to being part of the same branch responsible for prosecution. As advocates have longed called for, Congress must establish Article I immigration courts for immigration proceedings to be truly fair and independent.

FILED UNDER: immigration judges

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

To date, Garland’s lousy performance @ DOJ gets an “F.” Simply not acceptable with lives on the line!

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color, Women, & Asylum Seekers.”

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-18-21

🇺🇸⚖️🗽GARCIA HERNANDEZ, MOSKOWITZ, CHEN, & I RIP GARLAND’S CONTINUATION OF BARR’S HORRIBLE IMMIGRATION JUDGE HIRING PRACTICES 🤮👎🏻 — DOJ’s Lame, Disingenuous Defense Of Garland’s Anti-Diversity, Anti-Immigrant, Anti-Due Process, Expertise-Denying Bogus Judicial Hiring Practices @ EOIR Enrages Progressives, Scholars, Experts, Betrays Biden’s Promises, Threatens To Shatter Dem Coalition! — Report By Rebecca Beitsch @ The Hill!

Rebecca Beitsch
Staff Writer
The Hill
PHOTO: pewtrust.org

https://thehill.com/policy/national-security/552373-biden-fills-immigration-court-with-trump-hires

From Rebecca’s article:

. . . .

The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience.

Almost none have made their career representing migrants in court.

The Thursday announcement from the Department of Justice (DOJ) initially perplexed immigration attorneys, advocates and even some former immigration judges who wondered why the group so closely mirrored the jurists favored by the Trump administration.

. . . .

It’s also a surprising move for a president that has otherwise sought to quickly reverse a number of Trump immigration policies while calling for a more humane response to migration.

“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.

. . . .

DOJ pushed back against criticism that the new judges would contribute to a pattern of rulings that favor government attorneys over immigrants, saying it “takes seriously any claims of unjustified and significant anomalies in adjudicator decision-making and takes steps to evaluate disparities.”

“Note also that the Executive Office for Immigration Review (EOIR) continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously and that its immigration judges uniformly interpret and administer U.S. immigration laws,” the spokesperson said.

But Schmidt said diversifying the attorneys on the bench is what will be needed to have a greater impact.

“You need to get some progressive immigration experts into the system who recognize what good asylum claims are who can establish precedent for granting cases and then move those cases through the system,” he said.

“I haven’t seen much evidence to back up their initial claim they want to be fair and just to asylum seekers. It’s just Stephen Miller Lite.”

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

The DOJ’s response is preposterous, further evidence Garland is the wrong person to bring “justice” back to “Justice!” No, and I mean NO, progressive immigration expert in America would call the DOJ’s judicial hiring practices under the Trump Administration fair and merit-based! These lists and the selection process were tainted by the Trump kakistocracy at DOJ. What kind of Attorney General perpetuates this utter nonsense!

Numerous detailed reports have criticized the Trump hiring plan that Garland mindlessly and insultingly furthered! Garland has access to all of these criticisms, most of which were delivered to the Biden Transition Team in one form or another. No excuses for Garland’s atrocious handling of EOIR to date!

The claim that EOIR takes claims of glaring discrepancies “seriously” is equally ridiculous and intellectually dishonest! Current TRAC Immigration data shows asylum grant rates for currently sitting Immigration Judges varying from more than 90% to 1% with a number of Immigration Judges, including several “rewarded” with appointments to the BIA under Barr, denying 98% or 99% of claims. Duh, you don’t need to be a statistician or have an Ivy League law degree to know that there is a skunk 🦨 in these woods!

These are major, unacceptable discrepancies first highlighted by my colleagues Professor Andy Schoenholtz, Professor Phil Schrag, and Professor and now Associate Dean (Temple Law) Jaya Ramji Nogales in their seminal work “Refugee Roulette” written more than a decade ago at Georgetown Law. The system is actually immeasurably worse now than it was then, as Sessions and Barr filled the Immigration Bench and packed the BIA with unqualified judges notorious for their lack of knowledge of asylum law and their anti-asylum bias. In some cases, they combined those shortcomings with allegations of rudeness and unprofessional behavior lodged by the private bar.

The NY Times figured out exactly what is wrong with the Immigration Courts — that they are not really “courts” at all by any normal measure and are operated by individuals who place immigration enforcement above due process and equal justice. Garland is certainly smart enough to have figured out what the NYT Editorial Writers had no difficulty in documenting and describing!

Neither Biden nor Garland would be in their current jobs without the efforts of progressive immigration litigators and scholars over the past four years and the energy and resources they injected into the Biden-Harris campaign when the chips were down! Progressives can’t allow the Biden Administration and Garland to continue to treat them as “chopped liver” while coddling Stephen Miller, Billy Barr, and, outrageously, even “AG for 5 minutes” “Monty Python” Wilkinson’s clearly unjustified and highly inappropriate judicial picks!

These are NOT bureaucratic jobs. “Conditional offers” aren’t “jobs,” particularly when made in the “excepted service” on the eve of or even after a hotly contested election where immigration and human rights were major issues! Immigration Judge positions are important life or death judicial positions in what is now America’s worst and most broken judiciary. In that context, Garland’s inappropriate judicial selections are totally outrageous and set a tone of continuing disrespect and disregard for some of the Democratic Party’s most loyal supporters, their expertise, and the important communities they represent!

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

It’s time for the Biden Administration to pay attention to the progressive immigration/human rights/due process bar! Otherwise, perhaps it’s time for progressives to turn their energies and talents to opposing an Administration that neither represents their views nor values their expertise and tireless efforts in support of American democracy and equal justice for all!

I, for one, did not go to the polls last fall to help more “Billy the Bigot” picks off tainted, exclusionary lists, developed in a culture that actively discouraged progressives and minority attorneys from applying, get jobs as Immigration Judges for which there is no way that they are the best candidates available! And, I’ll bet that neither did other members of the NDPA! Enough is enough! End the EOIR Clown Show!☠️🤡 And, if Garland can’t or won’t do that, then Biden needs a new AG before Garland irrevocably splinters the Democratic base with his gross mishandling of EOIR!

Due Process Forever!

PWS

05-09-21

🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

Judge Garland’s vision of “justice” for immigrants @ Justice:

Gone from the West Wing, but he and his EOIR “plants” remain an inspiration for “Dred Scottification” of the other, unconstitutional “judging,” worst practices, and demeaning treatment of human rights experts and due process advocates by the DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

Houston we still have a (huge) problem! Luckily we also have some great immigration advocates and members of the due process army.

. . . .

Houston EOIR is still closed for non-detained. They have just built a third immigration court here, “Greenspoint”, with over 30 brand new judges, just collecting dust (although that’s probably a good thing as it would only serve as a deportation mill). If you can believe the absurdity, you have to file a motion for change of venue + a motion to consolidate, to join family members whose cases have been placed in different courts all here in Houston. 🤦‍♂️🤦‍♂️

I believe Houston now has the 2nd largest backlog after New York City now, in large part due to the mismanagement by EOIR HQ.

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

From coast to coast, from the Rio Grande to the Great Lakes, Courtside followers and NDPA warriors are making it clear: Garland’s failure to take due process and racial justice in Immigration Court seriously and his disregard and disrespect for immigration/human rights experts is furthering havoc in the American justice system!

Is it “malicious incompetence” or just plain old incompetence and disregard for the due process rights of “the other” by Garland? Does it make any difference?

What will make a difference is flooding the Article IIIs with litigation challenging this ongoing constitutional nonsense and squandering of taxpayer funds! Overwhelm EOIR with applications for judicial positions and “bore out” the rotten foundations of this system from the inside with the tools of due process, fundamental fairness, and best practices! Also, inundate your Congressional representatives with demands that this blot on American justice be removed from the DOJ forthwith! Write those op-eds and keep informing your local media about the unmitigated, unnecessary, unconscionable, unconstitutional continuing disaster at Garland’s EOIR and how it destroys human lives on a daily basis! Shine the beacon of due process and justice on the dark, secretive, unconstitutional “Star Chambers” Garland operates in the guise of Immigration “Courts.”

Star Chamber Justice — Progressives must put an end to Garland’s Star Chamber Style “Justice” @ Justice. Demand REAL courts with independent, progressive, expert judges who have actually represented human beings in Immigration Court! No more “plants,” “insiders,” and “go along to get along” appointments to America’s key human rights and racial justice judiciary. No more bureaucratic incompetence, assembly line justice, anti-immigrant misogynist culture, and “deportation adjudication centers” masquerading as “courts!” Open up this secretive, closed, unjust bureaucracy to the light of justice and the NDPA! Due Process Forever!

NDPA legions, don’t be content to “wander in the wilderness” while clueless politicos and bureaucrats @ Garland’s DOJ destroy your sanity and the lives of the humans you represent! Stand up to institutionalized racism, continuing incompetence, disgraceful misogyny, intransigence, and ongoing “Dred Scottification” of communities of color by the Garland DOJ! End the DOJ’s anti-immigrant culture and disrespect for the defenders of due process and American democracy that goes on Administration after Administration as if your clients’ lives and your professional expertise were “chopped liver!” Enough is enough! Fight back against “Miller Lite Justice!”

My fellow warriors for justice, YOU are again being ignored, shut out, marginalized, abused, looked down upon, dehumanized, insulted, and scorned by yet another Dem Administration that YOU helped put in office! Time to stand up and be heard for YOUR rights, the rights of the people YOU represent, and the future of our Federal Judiciary and our American Democracy!

NO MORE “MILLER LITE @ JUSTICE!” ASK YOURSELVES: WHO WON THE LAST ELECTION? WHAT DOES IT MEAN TO “WIN” IF GARLAND CONTINUES TO RUN THE IMMIGRATION COURTS LIKE STEPHEN MILLER IS STILL IN CHARGE?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-06-21

🇺🇸🗽⚖️AILA SPEAKS OUT: GARLAND’S UNCONSTITUTIONAL, DYSFUNCTIONAL IMMIGRATION COURTS ARE A ROADBLOCK ON THE WAY TO A MORE WELCOMING AMERICA THAT ENCOMPASSES RACIAL JUSTICE! — Time For Congress To End The Continuing National Embarrassment @ Justice & Create Article I Court!

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

Amateur Night — Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place!
PHOTO: Thomas Hawk
Creative Commons

Fed up with “Garland’s Clown Show🤡” @ Justice?

Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!

Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!

Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!

Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Enough is enough!

PWS

04-18-21

POWER FAILURE @ GARLAND’S DOJ THREATENS LIVES, WASTES MONEY, ENDANGERS BIDEN’S SOCIAL JUSTICE AGENDA, TURNS ALLIES INTO OPPONENTS! — NBC News “Gets It!” — Why Doesn’t Judge Garland? — Unqualified Trump/Miller “Burrower” Carl C. Risch Draws Fat Salary From Judge G. @ EOIR As Asylum Seekers, Battered Women, People Of Color Continue To Be Abused In His “Star Chambers!” — Outrage At Garland’s Lousy Performance On EOIR Reform Grows Among Members Of The Due Process Army!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.nbcnews.com/news/amp/ncna1262234

By Adam Edelman @ NBC News:

. . . .

Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.

One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.

His is at least the second conversion in the last year to land at the EOIR, which conducts removal and deportation proceedings in immigration courts across the country.

Recommended

DONALD TRUMP

Documents show high number of permanent job requests from Trump appointees in final year

“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”

Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.

. . . .

**************
Read the full article at the link.

So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!

Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?

He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?

Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?

Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!

That would also have sent a powerful “signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR.

Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.

Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts.

They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency.

Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit and hire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer!

Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

Garland should already have hired Professor Michele Pistone (Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.

Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.

Could it get any worse? How?

Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice.

Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneys during the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!

How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!

I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.

I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!

🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!

PWS

04-11-21

🗽BIDEN IMMIGRATION BILL: Here’s The National Immigration Law Center’s (“NILC”) Analysis Of The Key Provisions Of The U.S. Citizenship Act!

https://www.nilc.org/wp-content/uploads/2021/03/USCA-key-provisions-summary.pdf

Here’s the section relating to the Immigration Courts:

Title IV: Immigration Courts, Family Values, and Vulnerable Individuals

We are facing a due process crisis in the immigration courts. Nearly 1.3 million cases are currently pending in a structurally flawed system housed within a

prosecutorial agency, the U.S. Department of Justice (DOJ).4 While this bill

4 https://trac.syr.edu/immigration/reports/637/.

10

falls short of creating an independent Article I immigration court,5 provisions in the bill would improve court operations and enhance due process protections for individuals facing highly complex immigration court proceedings that

often raise issues of life and death.6 Even though representation is often

the single greatest factor in determining whether an individual will obtain relief in removal proceedings,7 low-income immigrants and people in immigration detention face significant barriers to obtaining counsel. This bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens. Provisions in this bill also provide for an expansion of DOJ’s Legal Orientation Program and greater access to legal information for immigrants who are not

detained. These are important steps in the right direction, but the bill falls short of ending civil immigration detention and establishing a much-needed universal representation program.8

Judicial diversity encourages fair decision-making, but DOJ’s Executive Office for Immigration Review (EOIR) has a long history of politicized

hiring,9 resulting in a supermajority of judges on the bench who have prosecutorial backgrounds. This bill calls for the hiring of additional immigration judges (IJs) and Board of Immigration Appeals (BIA) members who are experts in immigration law, and it encourages the hiring of IJs who have diverse experience, including people from the private sector. The bill also requires EOIR to conduct mandatory continuing legal and diversity training for IJs and BIA members. Additional steps must be taken to ensure critical oversight into the hiring process, promote diversity, and eliminate harassment in the immigration courts.10

Also included in this bill are provisions to protect vulnerable individuals. The bill eliminates the one-year filing deadline for asylum claims and increases access to employment authorization for people seeking asylum and for U and T visa applicants, ensuring that vulnerable populations seeking refuge in the U.S. will be able to work and support their families while their immigration cases are pending.

5 https://www.aila.org/advo-media/aila-correspondence/2020/advocates-call-on-congress-

establish-independent.

6 https://www.washingtonpost.com/opinions/im-an-immigration-judge-heres-how-we-can-fix-our-

courts/2019/04/12/76afe914-5d3e-11e9-a00e-050dc7b82693_story.html.

7 https://bit.ly/3q310Uh.

8 https://www.vera.org/advancing-universal-representation-toolkit/the-case-for-universal- representation-1.

9 https://www.whitehouse.senate.gov/news/release/senators-press-barr-on-politicization-of- justice-department-administration-of-immigration-courts.

10 https://www.sfchronicle.com/politics/article/Sexually-inappropriate-behavior-runs-rife-

in-15889003.php.

FEBRUARY 2021

11

The bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens.

X Provides for appointing counsel for children and vulnerable noncitizens. Authorizes funding for and requires DOJ to appoint or provide counsel

for children, vulnerable individuals, and other people where necessary. Requires DHS to provide copies of their immigration files to individuals who are in immigration court proceedings.

X Requires access to legal orientation programs and access to counsel. Requires legal orientation programs to be available for all noncitizens in immigration detention. DHS must provide access to counsel inside all immigration detention facilities and border facilities.

X Increases access to legal information. Expands the help desk program

to all immigration courts, providing non-detained individuals who have pending asylum claims access to information related to immigration status. Requires DHS to provide copies of their immigration files to people who are in immigration court proceedings.

X Expands alternatives to detention. Expands the family case management program and requires DHS to develop additional community-based programs. People enrolled in these programs will receive legal orientations.

X Increases immigration court hiring. Requires DOJ to increase the number of IJs on the bench, hire additional BIA staff attorneys, and provide sufficient support staff. In hiring the new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.

X Expands training for IJs and members of the BIA. Requires the EOIR

to conduct mandatory training for IJs and members of the BIA, including continuing legal training and training on age, gender, and trauma sensitivity.

X Directs EOIR to modernize technology. Requires the EOIR director to modernize electronic systems, including by allowing electronic filing, to improve court proceedings.

X Eliminates barriers to asylum and protects vulnerable populations. Removes the one-year time limit for filing an asylum claim. Increases protections for U visa, T visa, and VAWA applicants by providing them with a rebuttable presumption of release from detention and prohibiting the removal of these applicants from the U.S. while an application is pending. Increases the number of U visas, which are available to some crime victims, from the current cap of 10,000 to 30,000 per year.

FEBRUARY 2021

12

In hiring new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.

X Increases access to employment authorization for people seeking U and T visas and protection under VAWA. People seeking U and T visas shall and must be granted employment authorization on the date their application is approved or a date to be determined by the DHS secretary within 180 days of submitting their petition, whichever is earlier. Employment authorization is issued for two years, with the possibility of renewal.

X Increases access to employment authorization for people seeking asylum. Provides that DHS shall grant employment authorization to bona fide and non-detained asylum-seekers within 180 days after they file their asylum application with DHS or DOJ.

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

The improvements to the Immigration Courts are all helpful. But, as the NILC points out, they fall short of what’s really needed: An independent Article I Immigration Court. One thing the bill does address, lack of diversity and immigration/human rights expertise among EOIR judicial hires (over the past three Administrations) is a glaring problem and hinderance to achieving due process and fundamental fairness.

Thanks to my friend and NDPA superstar Laura Lynch, Senior Immigration Policy Attorney at the NILC for passing this along.

⚖️🗽🇺🇸🧑🏽‍⚖️Due Process Forever!

PWS

03-03-21

THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, March 19, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.

USCIS Office Closings, Including Weather

TOP NEWS

Biden revokes Trump ban on many green card applicants

Reuters: U.S. President Joe Biden on Wednesday revoked a proclamation from his predecessor that blocked many green card applicants from entering the United States.

Biden to allow migrant families separated under Trump to reunite in the U.S.

Politico: ACLU Executive Director Anthony D. Romero was quick to welcome Mayorkas’ announcement, but cautioned that “the devil is in the details and Secretary Mayorkas has to shed all the caveats and qualifications around his announcement and follow through with everything that’s necessary to right the wrong.” See also Lawyers have found the parents of 105 separated migrant children in past month.

Biden to Discuss Border and Other Issues With Mexican President

NYT: The two leaders, who previously talked about ways to stem migration in a call on Jan. 22, just days after Mr. Biden took office, are expected to discuss addressing the root causes of persecution and poverty that force Central American families to flee to the United States.

First migrant facility for children opens under Biden

WaPo: Government officials say the camp is needed because facilities for migrant children have had to cut capacity by nearly half because of the coronavirus pandemic. At the same time, the number of unaccompanied children crossing the border has been inching up, with January reporting the highest total — more than 5,700 apprehensions — for that month in recent years.

Federal judge deals Biden another blow on 100-day deportation ban

Politico: U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the moratorium the Biden administration announced on its first day.

ICE investigators used a private utility database covering millions to pursue immigration violations

WaPo: U.S. Immigration and Customs Enforcement officers have tapped a private database containing hundreds of millions of phone, water, electricity and other utility records while pursuing immigration violations, according to public documents uncovered by Georgetown Law researchers and shared with The Washington Post.

The Trump Administration’s Cruelty Haunts Our Virtual Immigration Courts

InTheseTimes: According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.

In The Story Of U.S. Immigration, Black Immigrants Are Often Left Out

NPR: Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration, tells NPR’s Scott Simon about challenges Black immigrants to the U.S. face.

Consumer watchdog sues immigration services company, claiming it preys on detainees

NBC: The Consumer Financial Protection Bureau on Monday filed a lawsuit against Libre by Nexus, claiming the company is preying on immigrants through a bond scam that traps participants into paying expensive fees.

The five biggest omissions in massive Biden immigration bill

Examiner: Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill.

LITIGATION/CASELAW/RULES/MEMOS

USCIS Launches Pilot Program to Facilitate Attorney or Representative Remote Participation in an Asylum Interview

USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices. AILA Doc. No. 21030131

2nd Circ. Judge Dings Majority’s ‘Uncharitable’ Asylum Ruling

Law360: A fractured Second Circuit panel tossed an El Salvadoran asylum seeker’s appeal, finding that his opposition to gangs was not a political opinion and that he could avoid future beatings, a view the dissenting judge called an “uncharitable” interpretation of the case.

BIA Rules on Special Rule Cancellation of Removal

BIA ruled that an applicant for special rule cancellation of removal under INA §240A(b)(2) based on spousal abuse must demonstrate both that the abuser was their lawful spouse and was either a U.S. citizen or LPR at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) AILA Doc. No. 21022432

Justices ‘Baffled,’ ‘Confused’ By Asylum Cases

Law360: A pair of thorny immigration cases “baffled” and “confused” the inquisitive justices of the U.S. Supreme Court Tuesday as they wrestled with when testimony of asylum applicants must be presumed to be credible.

District Court Indefinitely Stops Government from Executing a 100-Day Moratorium on Removals

A district court grants nationwide preliminary injunction to prohibit enforcement and implementation of the 100-day pause on removals as outlined in the 1/20/21 DHS memo. (State of Texas v. USA, et al., 2/23/21) AILA Doc. No. 21012634

Presidential Proclamation Revoking Immigrant Visa Ban

On 2/24/21, President Biden issued Proclamation 10149 revoking Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. (86 FR 11847, 3/1/21) AILA Doc. No. 21022490

DOS Provides Update on the Phased Resumption of Routine Visa Services

DOS updates its announcement and FAQs on the phased resumption of visa services following the rescission of Presidential Proclamation 10014, which suspended the entry of certain immigrant visa applicants into the United States. AILA Doc. No. 20071435

DOJ Appeals Ruling Limiting Immigrant Detentions Without a Court Hearing

Documented: Judge Alison Nathan’s Nov. 30 ruling at U.S. District Court in Manhattan was the first to draw a constitutional line on how long an Immigration and Customs Enforcement detainee waits for an initial hearing before a judge.

ICE Can’t Keep Transferred Detainee Out Of Fla. Class Action

Law360: A Florida federal judge ruled Friday that a Mexican citizen can join a class action challenging U.S. Customs and Immigration Enforcement detainee conditions at three South Florida facilities during the COVID-19 pandemic, saying the agency cannot escape jurisdiction by transferring him to a facility across the country.

Council Sues Customs and Border Protection to Release Records of Militarized Raids on Humanitarian Aid Station

AIC: The Council and partners filed a Freedom of Information Act (FOIA) lawsuit to compel the government to release documentation of three raids on a humanitarian aid station in the deadly desert in Southern Arizona.

HHS Withdrawal of Request for Comment on Proposed Revisions to Forms for Sponsors of Unaccompanied Children

The Department of Health and Human Services published a notice stating that it is no longer pursuing changes to the forms for sponsors of unaccompanied children on which it had requested public comment on 1/5/21 at 86 FR 308, and therefore withdraws its request for comment. (86 FR 11537, 2/25/21) AILA Doc. No. 21022531

DHS Secretary Mayorkas Announces Family Reunification Task Force Principles and Executive Director

DHS: Secretary Mayorkas announced that Michelle Brané will serve as the Task Force’s Executive Director. Most recently, she served as the senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.

RESOURCES

·         Correction: The ERO ombudsman email that was circulating last week had a typo and should be: EROOmbudsman@ice.dhs.gov.

·         AILA: Policy Brief: Walled Off: How USCIS Has Closed Its Doors on Customers and Strayed from Its Statutory Customer Service Mission

·         AILA: Current Leadership of Major Immigration Agencies

·         AILA: Practice Alert: ICE Interim Guidance on Civil Immigration Enforcement and Removal Priorities

·         AILA: Practice Pointer: Employment Verification During the COVID-19 Outbreak

·         AILA: Summary of the U.S. Citizenship Act

·         AILA: Section-by-Section Summary of the U.S. Citizenship Act

·         AILA: Podcast: Representing a Mentally Ill Client Facing Removal Proceedings

·         AILA: Resource Related to Lawsuit Granting Preliminary Relief for Diversity Visa Applicants

·         ASISTA: New Advisory: Overview of U.S. Citizenship Act of 2021 & Its Impact on Immigrant Survivors

·         Black Immigrants Got Talent

·         CGRS: Children’s Asylum Manual: A Resource for Practitioners

·         CLINIC: Biden Administration Rescinds 2018 USCIS Notice to Appear Guidance

·         CLINIC: Department of State Shifts Human Rights Reports Comparison Charts

·         CMS: New Study about Immigrant Health in New York City

·         CRS: Are Temporary Protected Status Recipients Eligible to Adjust Status?

·         GAO: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection

·         ICYMI: Important Policy & ASISTA Updates

·         ILRC: What Every Noncitizen Must Know About Cannabis and Immigration

·         Immigration Mapping: From Hirabayashi to DACA

·         LGBT Adult Immigrants in the United States

·         LSNYC Practice Advisory on continuances: fourth edition of the sample motion

·         USCIS: Resources on U.S. Citizenship for Adult Adoptees

EVENTS

3/2/21 SIJS-based Adjustment of Status before EOIR

3/2/21 Creative Evidentiary Solutions for Asylum Cases

3/3/21 Thinking Beyond Resettlement: Are Complementary Pathways for Refugees the Answer?

3/4/21 TPS Updates

3/4/21 An Immigration Practitioner’s Guide to Ethics

3/5/21 Matter of A-B-: Litigation Update and Strategy Discussion

3/5/21-3/26/21 Webinar Series: Selected Issues in Inadmissibility

3/8/21 How Refugee Protections Fail Migrant Women: Personal is no Longer Political

3/8/21 NYIC: DOJ Recognition & Accreditation

3/10/21 All About DOJ Recognition and Accreditation

3/10/21 A Celebration of Women in Immigration Law

3/10/21 Deported Veterans Symposium

3/12/21 Strategies and Tactics for Successful Immigration Appeals

3/16/21 Representing Immigrants in Family Court

3/16/21 Ethical Issues in Crisis Lawyering: Representation and Advocacy Challenges

3/16/21 Pending Lawsuits: Where Are We Now? Keeping Up with BIG Litigation

3/17/21-3/18/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part II: Preparing The Case

3/17/21 Incorporating Holistic Services in an Immigration Legal Services Program

3/18/21 CGRS Webinar: Asylum Policy and Litigation Update Under the Biden Administration

3/23/21 Complex Naturalization: How to Get Your Clients to Citizenship

3/23/21 Understanding the Conditional Permanent Residence Petition (Form I-751)

3/24/21 Privacy at Risk: Searches of Electronic Devices at Ports of Entry and Beyond

3/30/21 Public Charge and the Affidavit of Support

3/30/21-5/14/21 Comprehensive Overview of Immigration Law (COIL)

4/5/21 Overview of Immigration Law Training

4/5/21-4/26/21 Webinar Series: Selected Issues in U Nonimmigrant Status

4/15/21 DACA

4/20/21 Hot Topics in Naturalization Adjudications

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

4/28/21 Community Defense: Legal Service Partnerships with Organizers

5/4/21 Public Charge: Current State of Play

5/6/21 Hot Topics in Asylum Law

5/10/21 All About DOJ Recognition and Accreditation

5/13/21 Marijuana and Immigrants

5/17/21-5/20/21 CLINIC Convening 2021

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/14/21 Taxes at the Border: Understanding the Tax Consequences of Immigration Status

6/15/21 U Visa Hot Topics

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

7/22/21 Defending Immigration Removal Proceedings 2021

·         9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, March 1, 2021

·         Join the Deported Veterans Symposium on March 10-12, 2021

·         LGBT Adult Immigrants in the United States

·         Jennifer Lee Koh Joins Pepperdine Law Faculty

·         Democrats Strategizing on Immigration Reform, Piecemeal or the Whole Enchilada?

Sunday, February 28, 2021

·         Year of the Ox’s “Viral” Song Gains Traction Amid Rise in Anti-Asian Violence

·         Brookings Institution: Biden’s Immigration Reset

Saturday, February 27, 2021

·         At the Movies: Minari (2020)

·         Immigration Article of the Day: Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang

Friday, February 26, 2021

·         Vera Institute — A Federal Defender Service for Immigrants Why: We Need a Universal, Zealous, and Person-Centered Model

·         Black Immigrants Got Talent (BIG Talent)

·         At the Movies: The Marksman (2021)

·         Fortress (North) America

·         Immigration Mapping: From Hirabayashi to DACA

·         At the Movies: Alien Terminology and Change the Subject, a 2019 Documentary

·         Immigration Article of the Day: Fee Retrenchment in Immigration Habeas by Seth Katsuya Endo

Thursday, February 25, 2021

·         Big Strides In Reunifying Separated Migrant Familes; Long Ways Still To Go

·         Call For Papers: Forced Migration Review on “Public health and WASH”

·         Immigrant Leaves Maplewood Church After 3½ Years As ICE Decides Not To Deport Him

·         Sister Simone Campbell on Immigration Reform

·         #WeCanWelcome Asylum Seekers: Meet Mirna Linares de Batres

·         Throwback Thursday: My Trials by Judge Paul Grussendorf

·         Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado

Wednesday, February 24, 2021

·         President Biden revokes Trump bans on many green card applicants, temporary foreign workers

·         Court Enjoins Biden Administration’s 100 Day Removal Pause

·         Ahilan Arulanantham joins UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy

·         The five biggest omissions in massive Biden immigration bill

·         Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming

Tuesday, February 23, 2021

·         From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

·         Congressmember Debbie Leski’s Racist Remarks

·         Teaching Immigration Law: Law School Clinics in the US and UK

·         Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa

Monday, February 22, 2021

·         From the Bookshelves: Migrant Conversions:  Transforming Connections between Peru and South Korea by Erica Vogel

·         Supreme Court News: Court to Review Public Charge Case, Hear Asylum Credibility Oral Arguments Tomorrow

·         USCIS restores citizenship and naturalization test

·         Immigration Lawyers Toolbox®

·         Code Compare on Lexis Nexis

·         Human Rights Watch — US: Take New Approach at Mexico Border

·         In Challenging Times, A Call for African American/Asian American Unity

·         Former Trump senior advisor Stephen Miller slams Biden immigration proposal

·         Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp

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

Check out “Top News #7.” It’s an article by Arvind Dilawar in In These Times about “EOIR’s Black Sites,” 🏴‍☠️ euphemistically known as “Immigration Adjudication Centers” where imposters masquerading as “judges” “process” cases by TV on the deportation assembly line, often without regard to the law, the facts, and the humanity of their victims and the lawyers representing them.

Here’s an excerpt:

Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.

They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.

This outrageous mockery of due process, fundamental fairness, and real judicial proceedings is ongoing, in the Department of “Justice” — yes, folks, the Chief Prosecutor of the U.S. maintains his own “wholly owned” “court system” in a nation where justice supposedly is unbiased and impartial — more than five weeks into the Biden Administration.

Last week, we heard a refreshingly emotional expression of personal gratitude and recognition of the essential role of refugee protections from Judge Merrick Garland.

What we haven’t heard to date is a recognition that what will soon be “his” DOJ treats refugees (in this case vulnerable asylum seekers) with disdain and disrespect “revved up” by four years of White Nationalist abuses heaped on them by Judge Garland’s corrupt predecessors as AGs for Trump. We also have yet to hear what Judge Garland plans to do about the deadly and disreputable “EOIR Clown Show” 🤡🦹🏿‍♂️ which will soon be operating under his auspices and which, whether he realizes it or not, will form the the major part of his legacy to American Justice.

Judge Garland should call up folks like Lisa Koop at NIJC, Claudia Valenzuela at American Immigration Council, and their colleagues to get a “real life dose” of what it means to be or represent an asylum seeker in today’s dysfunctional and disreputable Immigration “Courts” that actually are 21st Century Star Chambers.

Better yet, he should replace the current EOIR Senior Executives and BIA Appellate Immigration Judges with Koop, Valenzuela, and others like them — “practical experts” in due process, equal justice, immigration, and human rights — who would restore and advance judicial integrity and fairness to a system that has abandoned and trampled upon those fundamental values!

Grim Reaper — G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

As stated at the end of Dilawar’s article: “Asylum-seekers are wrongfully denied asylum, and justice is not served.” Duh!

🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿‍♂️🎪☠️

PWS

03-02-21

🎇🧨💣BLOCKBUSTER NEW REPORT MAKES COMPELLING CASE FOR IMMEDIATE END TO EOIR CLOWN SHOW! 🤡🦹🏿‍♂️ — Lays Out Blueprint For Restoring Due Process, Enhancing Justice In America’s Most Dysfunctional, Unfair, and Abusive “Courts!”

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

New from Kate Voigt @ AILA:

https://www.aila.org/advo-media/aila-policy-briefs/policy-brief-why-president-biden-needs-to-make

Policy Brief: Why President Biden Needs to Make Immediate Changes to Rehabilitate the Immigration Courts

AILA Doc. No. 21021232 | Dated February 12, 2021 | File Size: 864 K

DOWNLOAD THE DOCUMENT

In just four years, President Trump implemented radical changes that fundamentally compromised the integrity of the immigration courts. This policy brief explains the most critical and urgent changes President Biden should make to the immigration court system to ensure fairness and impartiality.

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

Download the complete policy brief at the link.

Thanks, Kate!

Great report!

I hope you have arranged to have a copy of this delivered to Judge Garland, Vanita Gupta, and Lisa Monaco. As you know better than anyone, every day the current BIA remains empowered to grossly distort and intentionally misapply the law and dish out injustice is another day of outrageous abuse for migrants and psychological harm inflicted on their representatives.

It is also essential that the folks in MPP and others applying at our borders are represented and judged according to a properly fair and generous interpretation of our asylum laws (as you point out, no more “99% denial club” assigned to Central American cases). Along with bogus “no show” rates, artificially inflated asylum denial rates have been used as key parts of the false narrative to smear and dehumanize asylum applicants at our Southern Border.

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️Due Process Forever!

Thanks again for all you and your colleagues do, and best wishes,

PWS

02-12-21

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

https://thehill.com/opinion/immigration/536794-unclogging-the-nations-immigration-court-system

From Immigration Impact:

. . . .

That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.

Supreme Court cancels border wall, asylum policy hearings after Biden…

Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.

Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.

Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.

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

Read the full article at the link.

Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!

Here are some more low-budget, immediate action “No-Brainers:”

Vacate all of the anti-asylum, backlog expanding “precedents” issued by Sessions, Whitaker, Barr, and the BIA over the past four years (immediately returning needed flexibility and some degree of fairness to the system);
Reassign the current BIA and replace with expert judges committed to due process who know how to grant asylum and establish precedents on how “clear grants” can be easily identified, properly documented, and consistently adjudicated (eliminate “refugee roulette” — largely a product of an “any reason to deny culture” combined with defective judicial selection, poor training, and lousy leadership);
Return all asylum cases denied over the past four years to the USCIS Asylum Office for adjudication without all the anti-asylum precedents and dehumanizing policies of the Trump regime;
Work with the private bar and NGOs to increase representation with universal representation as the goal;
Eliminate inane and demeaning “production quotas” for EOIR judges (thus placing the emphasis back on careful decision making, thoughtful analysis, and getting the correct result the first time — also restoring IJs’ ability to schedule and manage dockets).

Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!

Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.” Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.”

But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.

Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system.

The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!

That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.

Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently.

Suggestion for EOIR Acting Director Jean King: Perhaps you weren’t aware that EOIR just posted the following recruitment notice for Attorney Advisor (Counsel to the Deputy Director) (not a joke, sadly): https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTAyMDMuMzQ1MzcxMTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9hdHRvcm5leS1hZHZpc29yLWNvdW5zZWwtZGVwdXR5LWRpcmVjdG9yIn0.HqH7tPMLAQqeCW9Xc0ooJNBRk_97S44aMG-xy02Pesc/s/842922301/br/97008185548-l

To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.

Additionally, the current Deputy Director Carl C. Risch is a notorious “Trump political burrower” who should be gone by the end of the month. 🧹🪠 https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/office-of-chief-administrative-hearing-officer-ocaho/judge-james-mchenry/carl-c-risch/

Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.

Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.

That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!

⚖️🗽🇺🇸Due Process Forever!

PWS

02-04-21

🇺🇸⚖️🗽TELLING IT LIKE IT IS! — Calling Out The White Nationalist Kakistocracy @ EOIR!

Woman Tortured — “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Kangaroos — BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice
https://www.flickr.com/photos/rasputin243/
Creative Commons License

‘White Nationalism’ In Immigration Courts Must Go: Ex-Judge
By Jennifer Doherty
Law360 (January 28, 2021, 9:48 PM EST) — A former immigration judge called on the Biden administration to reorient the mission of immigration courts on Thursday, saying that a “white nationalist program” had taken root under the Trump administration and needs to be eradicated.
Speaking on a panel about a new report showing that the vast majority of non-detained migrants appear at their immigration court hearings, retired Judge Paul Wickham Schmidt called out Trump administration officials over “big lies and bogus narratives” promoted by the U.S. Department of Homeland Security and the Executive Office of Immigration Review, including claims that detention was necessary to prevent migrants from disappearing.
Judge Schmidt, who used to be the chair of the Board of Immigration Appeals, pointed to former Attorney General Jeff Sessions’ intervention in immigration cases to relitigate cases such as whether women who suffer domestic abuse in regions with high rates of femicide qualify for asylum, as well as the former administration’s messaging to immigration judges that their role was an extension of DHS’ enforcement mechanism.
“It’s all been part, I think, of the Stephen Miller white nationalist program, that there is no such thing as a good immigrant; all the immigrants are here to take our jobs or to evade the system,” Judge Schmidt said, referring to one of former President Donald Trump’s senior advisers.
Meanwhile, Thursday’s report from the American Immigration Council, an advocacy nonprofit group, confirmed what many immigration judges have known for years, according to Judge Schmidt.
Relying on a sample of 2.8 million immigration court cases where migrants were either released or were never detained, the report found that 83% of respondents with pending or completed removal cases showed up for every hearing, a share that increased to 96% for immigrants represented by counsel.
“Represented asylum-seekers appearing before fair, knowledgeable judges show up for virtually all of their EOIR merits hearings,” Judge Schmidt said.
Based on those findings, the report recommended four policy reforms, including reducing immigration detention and ending the Migrant Protection Protocols, which have forced over 70,000 people to wait in Mexico for decisions in their asylum cases.
The report also called for additional training for immigration judges and the rollback of a law requiring judges to issue orders of removal for migrants who failed to appear, an occurrence the authors found was frequently due to faulty notices to appear.
Creating an Article I, also called a legislative court, would also give immigration judges more independence in their review of individual cases and relieve them from pressure to meet case quotas, according to the report.
UCLA School of Law professor Ingrid Eagly, co-author of the report, said that additional training would serve to reduce inconsistencies between immigration courts and ensure that judges held the
government accountable for its responsibility to notify migrants of their court dates.

. . . .

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

Those with access can read the rest of Jennifer’s article on Law360.

Jennifer Doherty
Reporter
Law 360
Photo: Twitter

I was talking to a lawyer/reporter this afternoon. Her comment was: “Could anybody have designed a worse system for deciding life or death cases?” She was told in “pro bono training” to observe how certain judges like the chairs arranged in the courtroom because it could affect the outcome of her client’s asylum case!

Another attorney I spoke with who had practiced personal injury law couldn’t believe that no immigration cases ever “settled.” Even those with clear merit bounce around the system for years and then go to full hearings, sometimes with inconsistent results!

How can a system operate like this? It can’t! That’s why doubling the number of questionably qualified “judges” has resulted in at least doubling, perhaps tripling, the “backlog.”

Under pressure from White Nationalists like Miller, Sessions, Hamilton, and Barr, EOIR has generated an artificially created “backlog” consisting largely of : 1] cases that could have easily been granted in a fair, functional, practical system; 2) cases that could be granted or placed in line at USCIS (another broken and dysfunctional agency); and 3) cases that never should have been filed in a rational system!

An incompetent BIA has failed to set forth the precedents for granting asylum and other relief that are necessary to restore the rule of law and common sense to a broken system! And they have totally failed to hold biased anti-asylum and nativist-enabling judges accountable! That’s because the BIA itself has become an organ of White Nationalist restrictionist bias bearing little, if any, resemblance to a “court” within the common understanding of the term. “Judicial independence,” impartiality, expertise, due process, and rationality have become “bad jokes” at EOIR!

And, for the past four years, the folks “running” this godawful system haven’t set foot in a courtroom in years (if ever) and don’t have a clue about asylum law or representing humans (rather than “agencies” or “nativists” as clients). It’s a friggin’ inexcusable disaster. FUBAR+++++++!

Judge Garland must end it!

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👍🏼Due Process Forever!

PWS

⚖️🗽“HOUSTON, WE’VE GOT A PROBLEM!” — It’s Called “EOIR” & It’s Time For The Clown Show 🤡 To Go! — Here’s My Speech Last Night To The Houston Chapter of AILA!

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

Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).

I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”

And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!

42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!

I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.

Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.

* * * * * * *

We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.

Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.

Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!

Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!

Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!

Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!

Read my complete speech here:

HOUSTON

And, here’s the zoom video recording, courtesy of Roberto Blum, Esquire, of Houston AILA:

https://zoom.us/rec/share/s607ygH0DZ4E_tQqcbs_6w1nrdDjfcoY9JWlIT7FAQRKm_mdFu5iGNP5ukVWjXLI.Y_uTqJUfps7uq9St?startTime=1607558497000

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

🤮EOIR’S STUPIDITY IN MOTION: One of the audience questions last night concerned the recent mindless “scheduling orders” issued by EOIR bureaucrats masquerading as “judges.” These were the subject of immediate harsh congressional criticism, as I noted yesterday. https://immigrationcourtside.com/2020/12/09/kakistocracy-korner%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f-eoirs-latest-maliciously-incompetent-%f0%9f%a4%ae-attack-%e2%98%a0%ef%b8%8f-on-kids-earns-well-deserved-congressional-ire/

Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!

Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.

Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.

This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!

Let your voices be heard!

I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”

Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”

After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.

We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all! Experts in justice rather than political and bureaucratic retreads! Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.

Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.

There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!

That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!

Due Process Forever!

PWS

12-10-20

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

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

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

NDPA SUPERSTAR 🌟🌟🌟🌟🌟 SCHOLAR-INNOVATOR PROFESSOR MICHELE PISTONE’S CREATIVE, AMAZING VIISTA PROGRAM IS CHANGING THE FACE OF PRO BONO REPRESENTATION FOR ASYLUM SEEKERS ⚖️— At A Time Of Grotesque Stupidity 🤮 & Management Catastrophe ☠️ Inflicted By The EOIR Kakistocracy, Michele & Her Talented, Problem-Solving Colleagues In The NDPA Are EXACTLY What America Needs To Replace The “Clown Show” With Real Practical Scholars Who Will Lead the New Due Process Revolution! ⚖️👨🏻‍⚖️🧑🏽‍⚖️🗽🇺🇸

Creator & Developer of VIISTA

Michele writes:

I am thrilled to report that VIISTA is getting rave reviews. The inaugural class of students is really enjoying the course. They will be finishing Module 1 next week and will start Module 2 (with its focus on immigration law) in January. I am really impressed so far with their work product and the quizzes and other assessments confirm that they are learning what we want them to learn.

Students in the inaugural class come from diverse backgrounds. My current students include a Stanford college senior who aims to work as a paralegal next year, and eventually go to law school. Other students are recent college grads interested in peace and justice/law/social work who want to make an immediate impact for immigrant families. Some students are first-generation immigrants, others are children of immigrants. Some students are retirees or those seeking an encore career, like empty nesters and parents coming back into the workforce. Three PhDs also enrolled in the program. Many are volunteers with immigrant serving organizations.

I am now focused on getting the word out. Attached and linked here is a recent article from the Chronicle of Higher Education and here is a link to an article from the Columbus Dispatch. And here is a link to the website, immigrantadvocate.villanova.edu.

Please help me to spread the word about VIISTA in your networks, including among volunteers with your organizations. You can also let folks know that scholarships are available for the Spring term, which starts on Monday, January 11.

The Scholarships are offered through ADROP, Augustinian Defenders of the Rights of the Poor.

You can read about the scholarship, the application process and apply at ADROP’s website: https://www.rightsofthepoor.org/viista-scholarship-program.

If you have any questions about the process, please feel free to reach out to Lacie Michaelson (cced here). She is the Executive Director of ADROP and took VIISTA herself as a student in the pilot.

Please note that the deadline to apply for a scholarship for Spring of 2021 semester is Monday, December 14th, 2020.

Thanks for helping me to spread the word and identify passionate advocates for immigrant justice who want to become part of the solution.

Warmly,

Michele

Michele R. Pistone

Professor of Law

_{Villanova University, Charles Widger School of Law}

Founding Faculty Director, VIISTA: Villanova Interdisciplinary Immigration Studies Training for Advocates

Founder, VIISTA Villanova Interdisciplinary Immigration Studies Training for Advocates

Director, Clinic for Asylum, Refugee & Emigrant Services (CARES)

Co-Managing Editor, Journal on Migration and Human Security

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

Michele, my friend and colleague, YOU are amazing!🦸‍♀️😎

With the echoes of my AILA keynote speech yesterday still reverberating across Ohio, here we are with the perfect example of why the EOIR Clown Show must go and be replaced by competent judges and administrators from the NDPA! https://immigrationcourtside.com/2020/12/04/🇺🇸good-morning-ohio-my-keynote-speech-to-aila-this-morning-🗽-an-ndpa-call-to-action-⚖%EF%B8%8F-the-eoi/

Over the past four years, what passes for “management” at DOJ and EOIR has wasted millions of dollars, squandered thousands of hours of time, and kept the private bar on a treadmill with a steady stream of moronic, cruel, and inept “enforcement only” gimmicks, each seemingly stupider and more counterproductive than the last, driven by a White Nationalist nativist agenda. The result is a backlog that has exploded to astounding levels, (even with twice as many judges on the bench, many of them with questionable credentials and little if any expertise in immigration and human rights laws) and a totally dysfunctional mess that threatens to topple the entire Federal judicial system.

As those of us who understand immigration know, the key to a successful EOIR is representation! With an adequate supply of good representation, cases get sorted out at the earliest possible levels, claims are properly documented and presented, individuals show up at their hearings at remarkably high rates, and results are much more likely to be fair. Presto, “Aimless Docket Reshuffling” by EOIR shrinks, parties are encouraged to stipulate and get right to the contested issues, results at trial are more likely to be fair, appeals, petitions for review, and remands decrease, and the backlogs go down as the dockets come under control. Moreover, as the Immigration Court litigation experience improves, more practitioners get the “positive vibes” and are willing to undertake pro bono or low bono cases. Best practices developed to achieve fairness on EOIR’s high-volume docket find their way into other parts of the Federal Court system. It’s an all-around winner! Or, at least it should be!

So, any competent, rational, and knowledgeable “management group” at EOIR would make increasing representation “job # 1.” They would work cooperatively and harmoniously with bar groups, NGOs, states, and localities, to increase availability and improve quality of representation. They would eschew unnecessary detention, which inhibits representation, and insure than courts are reasonably and conveniently located in areas where private representation is abundantly available.

Of course, that’s not what the clowns at EOIR have done! Instead, they have gone out of their way to inflict misery on respondents and their representatives. Far from inspiring more folks to undertake cases, we have all seen stories of how the intentional rudeness and abuse inflicted in Immigration Court and the dysfunctional system actually demoralizes lawyers and causes them to leave the field. Their “stories of woe” are hardly encouraging for others to donate time and effort.

Fortunately, while EOIR was busy ”kneecapping justice,” someone outside the “EOIR twilight zone” was thinking about how to solve the problem! With help from her friends, Michele designed the VIISTA program to train more non-attorney representatives to represent asylum seekers, convinced folks to fund it, recruited initial classes, and has it up and running. (By contrast, after two decades of wasted resources and incompetent meanderings, EOIR is still without a functioning e-filing system. Think that might have helped or saved some lives during the pandemic?)

And the training is not only a bargain (with scholarships available), it is beyond first class in substance and content. Essentially, it’s “what you really need to learn in law school in less than a year.” The curriculum would put to shame any training we received at EOIR, even before the current Clown Show. My Round Table colleague Judge Jeffrey Chase (a/k/a “Sir Jeffrey”) has reviewed the curriculum and agrees.

The solution is painfully obvious to anyone who takes the time to think about it. On January 21, 2021, give the hook to the Clown Show in Falls Church, and bring in the scholar/problem solvers like Michele and her NDPA colleagues to lead the due process revolution that will transform EOIR into a place where teamwork and innovation will produce the world’s best court system guaranteeing fairness and due process for all. That was once the “EOIR vision” before “serial mismanagement” transformed it into the ugly, dysfunctional Star Chamber that confronts us today.

It need not and should not be that way. But, the vision of true due process at EOIR will only be realized if the Biden Administration puts the right people — folks like Michele and others like her from the NDPA — in place immediately upon assuming power.

Let your contacts in the Biden Administration know that you have had more than enough! The EOIR Clown Show must go!

Due Process Forever!

PWS

12-05-20

🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻

Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.

It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.

Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!

With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.

EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.

But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.

Read my complete speech here:

OHIO AILA

DUE PROCESS FOREVER!

PWS

12-04-20

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

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

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

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

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

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

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

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

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

Packing the Board of Immigration Appeals

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

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

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

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

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

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Read Gregory’s complete article at the link.

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

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

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

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

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

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

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

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

Due Process Forever!

PWS

11-15-20

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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Due Process Forever!

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Judge Garland’s vision of “justice” for immigrants @ Justice:

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Enough is enough!

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🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!

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⚖️🗽🇺🇸🧑🏽‍⚖️Due Process Forever!

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🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿‍♂️🎪☠️

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Policy Brief: Why President Biden Needs to Make Immediate Changes to Rehabilitate the Immigration Courts

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️Due Process Forever!

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Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!

⚖️🗽🇺🇸Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️👍🏼Due Process Forever!

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Due Process Forever!

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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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Let your contacts in the Biden Administration know that you have had more than enough! The EOIR Clown Show must go!

Due Process Forever!

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Read my complete speech here:

DUE PROCESS FOREVER!

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

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

Due Process Forever!

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