"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Category: American Immigration Lawyers Association (“AILA”)
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
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.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
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.’”
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, institutionalizedracism, 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!
A graduate of the University of Baltimore Law, Laura has been Senior Policy Counsel at the American Immigration Lawyers Association (“AILA”) National Office in Washington, D.C. for the past four years. In that role, she engaged with Federal agencies, Congress, and designated AILA committees on immigration issues with a focus on interior enforcement, due process, and removal defense. Immigration Court Reform was one of Laura’s key areas of expertise.
Importantly, from my personal standpoint, Laura has been (and will continue to be, I hope), part of the “Informal Strategic Planning Group” for the New Due Process Army (”NDPA”) that includes Dan Kowalski, Michelle Mendez, Debi Sanders, Tess Hellgren, and my Round Table colleagues Judge Jeffrey S. Chase and Judge Ilyce Shugall! Her many contributions to our camaraderie and work in behalf of due process and fundamental fairness have been nothing short of spectacular!
The good news is that, although NILC is headquartered in Los Angeles, Laura will be remaining in Washington, D.C. While she tells me that her “precise portfolio” at NILC is “TBD,” I know we will be hearing much more from our “Due Process Superstar” in the future.
Thanks for all your past contributions and all the best for the future, Laura, from all of your many “admirers and fellow soldiers in the NDPA!”
Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases
WASHINGTON, DC — Immigration groups filed a lawsuit today in the United States District Court for the District of Columbia against the Executive Office for Immigration Review (EOIR)—which oversees immigration courts—and the General Services Administration (GSA) requesting information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.
The lawsuit—filed by the American Immigration Council, American Immigration Lawyers Association, the Chicago AILA Chapter, and the National Immigrant Justice Center— seeks the disclosure of records on the obscure procedural rules for immigration adjudication centers. The centers are a new initiative created under the Trump administration where immigration judges adjudicate immigration cases from around the country in remote-only settings that are closed to the public.
Immigration adjudication centers appear to have been created to address immigration court backlogs, but attorneys and immigrants facing deportation have little instruction on the procedures for appearing before these centers. Immigration lawyers and advocates have expressed concerns after public reports indicate the potential expansion of immigration adjudication centers across the country.
The lawsuit challenges EOIR’s failure to disclose information in response to a Freedom of Information Act request submitted in March 2020. EOIR and GSA have failed to disclose critical information about what immigration courts presently exist, immigration court expansion, and contracts governing this expansion.
“Immigration lawyers and advocates have an interest in pressing for more transparency in the immigration courts, helping ensure the due process rights of all who appear in court, and providing guidance to the lawyers representing people before these courts,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council.
“Transparency is essential to a fair day in court. Unfortunately, the secretive creation and expansion of immigration adjudication centers where immigration judges conduct remote-only proceedings in facilities closed to the public demonstrate how opaque an already complex immigration court system has become at the hands of this administration. While the Department of Justice regulations require immigration hearings to generally be open to the public, this administration has imposed significant new barriers to the public’s ability to observe these proceedings and has led to some hearings being conducted in secret, calling into question whether the fundamental elements of due process are being met. We are proud to stand alongside our partners in this effort,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
“Everyone deserves a fair day in court. The lack of transparency in EOIR operations compromises the integrity of our immigration system and undermines public confidence in this system,” said Nell Barker, chair of the American Immigration Lawyers Association’s Chicago Chapter. “The secretive expansion of immigration courts is a blow to due process and adds a layer of unnecessary unpredictability to a system that struggles to inform stakeholders about changing procedures. We are concerned about the increasing inaccessibility of immigration courtrooms to lawyers, clients, and the public.”
“The secretive and inaccessible immigration adjudication centers, where judges determine whether noncitizens will be deported to persecution and torture or permanent family separation, are a disturbing example of the manner in which this administration has developed and expanded numerous policies and procedures intended to expedite the deportation of noncitizens without due process,” said Sarah Thompson, senior litigation attorney at the National Immigrant Justice Center. “EOIR must make public its plan for future adjudication centers and the procedures under which these centers operate.”
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
The National Immigrant Justice Center (NIJC) is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. Visit immigrantjustice.org and follow @NIJC.
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The current system is specifically designed to “break” asylum seekers and their representatives in body and mind.
Will a lawless regime get another four years to finish the job of destroying American democracy and eradicating justice? Or, will there be hope on the horizon for a better future for all Americans!
Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.
Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.
“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.
Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.
Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.
Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.
Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.
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Read Marcia’s full article at the link.
Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”
Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses!But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.
The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!
Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!
It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.
Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.
Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?
Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?
It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!
We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”
It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!
And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!
Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!
By Hon. Sue Roy
Former U.S. Immigration Judge
Exclusive to Courtside
Oct. 8, 2020
As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.
This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.
As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.
Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.
It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.
Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.
Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.
The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.
Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.
There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.
As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.
We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.
NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.
Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.
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Thanks, Sue, for all you do for due process!
Here are links to my previous reports on the litigation:
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round TableHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesLaura Lynch Senior Policy Counsel AILA
Ex-Immigration Judges Say NJ Court Risking Public Health
By Sarah Martinson
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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.
In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.
The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.
“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”
In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.
The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.
The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.
The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.
“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.
In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.
A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.
AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”
“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.
Counsel for the federal government declined to comment Wednesday.
AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.
NJ Immigration Attys Can’t Stop In-Person Hearings For Now
By Jeannie O’Sullivan
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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.
During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.
The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.
“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”
The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.
“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.
Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.
“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”
The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.
The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.
The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.
The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.
The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.
Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮
I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?
When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?
To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!
I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!
Washington, DC – Today, the Department of Justice (DOJ) published a sweeping proposed rule in the Federal Register that would overhaul Board of Immigration Appeals (BIA) processes and remove due process safeguards with an aim of fast-tracking deportations. The public has 30 days to comment on the proposed rule.
AILA’s Senior Policy Counsel, Laura Lynch, stated, “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges. Putting this much power in the hands of an administrator who is not even a judge will give the Trump administration unprecedented ability to manipulate the courts in furtherance of its deportation agenda. The need for independent immigration courts has never been more urgent, or clear. This exemplifies why AILA is calling on Congress to pass legislation creating an immigration court system separate and independent from DOJ.”
AILA’s First Vice President, Jeremy McKinney, added, “The realities of this proposed rule are grim—more power entrusted to a hand-selected bureaucrat, increased pressure for speedy decisions at the cost of due process, and a dismantling of an appeals process vital to a fair day in court. Deeply troubling is the rule’s codification of the prohibition former Attorney General Jeff Sessions tried to impose on judges’ ability to administratively close cases, a fundamental authority judges need to efficiently manage their overloaded dockets. At least two circuit courts have rejected Sessions’ analysis and overturned the decision. The proposed rule is part of a larger effort by the DOJ to exert improper political influence over immigration court decisions and to turn the immigration courts into an enforcement mechanism. It’s a power grab, pure and simple.”
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Laura A. Lynch, Esq.
Senior Policy Counsel
***************
Thanks, Laura, for all that you and AILA do to fight for equal justice for all and to combat the evil influence of Billy the Bigot and his toadies over at EOIR!
Litigate, litigate, litigate! Force the Article IIIs to confront on a mass basis the human carnage, overt xenophobia, mockery of justice, and racism that they have fostered with their timid and indolent approach to the massive assault on our justice system and human dignity from Billy the Bigot and the White Nationalist regime! Make a record for future generations to see who stepped up, who chickened out, and what kind of individuals hid behind their black robes while humanity suffered and the lives of some of the most vulnerable were unlawfully and unethically destroyed.
There is no excuse for the continued, unconstitutional EOIR abomination! Past time for the Article IIIs to call halt to this perverted charade and transfer all immigration hearings to U.S. Magistrate Judges until Congress and the Executive create a new, independent, constitutionally compliant Immigration Court!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Laura Lynch Senior Policy Counsel AILA
Laura Lynch @ AILA reports:
FYI – On Friday, August 21st, Democratic members of the Senate Judiciary Committee sent a letter to the GAO requesting an investigation into the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic.
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org
1331 G Street NW, Suite 300, Washington, DC 20005
From: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Sent: Friday, August 21, 2020 3:24 PM
To: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Subject: Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages
FOR IMMEDIATE RELEASE
August 21, 2020
Contact: Rich Davidson
(202) 228-6291 (press office)
Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages
Trump attacks on immigration system raise serious concerns about safety during pandemic
More than 1,000 people in immigration detention have tested positive for COVID-19, and five have died
Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), and Mazie Hirono (D-HI) led a Senate request to the top congressional watchdog to investigate the practices of the Executive Office of Immigration Review (EOIR) under President Trump, including its management of immigration courts during the current COVID-19 pandemic. In a letter to the Government Accountability Office (GAO), the senators raise concerns first voiced to the Justice Department in February about mismanagement of the EOIR under Attorney General William Barr, as well as the Trump administration’s regulatory and procedural changes at the Justice Department that have curtailed the independence of immigration courts. The administration’s mismanagement of and meddling with the immigration courts – done in the name of “efficiency” – are particularly troubling during the COVID-19 pandemic, when an overburdened system can lead to unsafe practices that place individuals at grave risk and jeopardize due process, the senators write to the GAO.
“While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures, legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens,” the senators write. “In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous.”
Joining Whitehouse, Durbin, and Hirono in the request to the GAO are Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Kamala Harris (D-CA).
The senators continue in their letter to GAO, “Immigration courts are now reopening around the country, including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video, participants often must appear in person or not at all. Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19. Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits. As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.”
The Trump administration’s management of the immigration system has come under close scrutiny during the COVID-19 crisis. Reports suggest immigrants face a range of unsafe conditions and practices as a result of Trump administration management decisions, including the detention of children using unaccountable private contractors. More than 1,000 people in immigration detention have tested positive for COVID-19, and five people have died.
Full text of the senators’ request is below. A PDF copy is available here.
August 21, 2020
The Honorable Gene Dodaro
Comptroller General of the United States
United States Government Accountability Office
441 G Street, NW
Washington, DC 20548
Dear Mr. Dodaro:
We are writing to request that the Government Accountability Office (GAO) analyze and audit the Executive Office of Immigration Review’s (EOIR) practices with respect to the hiring, training, and evaluation of immigration judges and staffing of immigration courts, as well as their management of these courts during the current COVID-19 pandemic. GAO’s insight will help Congress determine if additional legislation is necessary to address these issues, as well as inform appropriations decisions.
In February, we wrote to Attorney General William Barr to express our concern that the Trump administration is undermining the independence of immigration courts. As outlined in that letter, attached, we are concerned about the mismanagement of EOIR and troubled by regulatory and procedural changes within the Department of Justice (DOJ) that have curtailed the independence of immigration courts. Although more than six months have passed, we have not received a response from DOJ or EOIR. Instead, in that time, EOIR has continued to use its administrative powers to put its thumb on the scale of justice. Most recently, EOIR attempted to buy out all nine career Board of Immigration Appeals judges who had been hired in prior administrations.[1] When the judges refused, they were reassigned to new roles.[2]
While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures,[3] legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens. In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous. While EOIR initially postponed all hearings for non-detained individuals, proceedings for detained noncitizens continued to move forward unabated.[4] Immigration courts are now reopening around the country,[5] including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video,[6] participants often must appear in person or not at all.[7] Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19.[8] Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits.[9] As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.[10]
EOIR’s facially-neutral policies during the COVID-19 pandemic have raised systemic due process concerns.[11] Immigration judges, staff, and litigators have also expressed concerns about the health risks to them and the litigants who appear in immigration courts.[12] Given GAO’s prior work on immigration courts,[13] it is uniquely suited to conduct an audit and analysis of EOIR. We ask GAO to look into the following questions:
What criteria does EOIR use to hire immigration judges and Board of Immigration Appeals judges? What criteria does EOIR use to determine the number of deputy chief and other management positions for judges, and what criteria does EOIR use to hire for these positions? To what extent does EOIR assess its immigration judge and Board of Immigration Appeals judge hiring efforts? What, if any, challenges has EOIR encountered in recruiting and retaining immigration judges and Board of Immigration Appeals judges? How, if at all, has it addressed them?
How does EOIR determine targets for immigration court and Board of Immigration Appeals case completion time frames and caseloads?
To what extent has EOIR assessed its immigration court and Board of Immigration Appeals staffing needs? What have any such assessments shown? How do current immigration court staffing levels compare to staffing needs EOIR has identified?
How does EOIR assess immigration and Board of Immigration Appeals judge performance?
To what extent has EOIR assessed immigration judge and Board of Immigration Appeals judge training needs? What have any such assessments shown?
How has EOIR’s use of video teleconferencing changed since GAO last reported on it in 2017? What, if any, data is EOIR collecting on hearings using video teleconferencing and the effects of that technology on hearing outcomes?
How do EOIR’s practices compare to other administrative courts?
How, if at all, is EOIR addressing the backlog of cases that were postponed in response to the COVID-19 pandemic?
How, if at all, has EOIR’s response to COVID-19 affected noncitizens’ ability to locate and meet with counsel, obtain and present evidence in their cases, and appear in court? To what extent have the challenges of COVID-19 impacted the number of in absentia orders issued by immigration courts?
Please keep our offices apprised of your review. Thank you for your attention to this matter.
[11] Betsy Woodruff Swan, Union: DOJ deportation appeals workers fear overcrowding, Politico, Apr. 23, 2020, https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075 (“That is the feeling the [EOIR] employees have, that [EOIR’s COVID response is] definitely connected to this administration and their desperation to be able to boast about how great they’re doing on their deportation numbers.”).
[12] Nat’l Assoc. of Immigration Judges, Am. Assoc. of Immigration Lawyers, & Am. Fed. Of Gov’t Employees Local 511, Position on the Health and Safety of Immigration Courts During the COVID-19 Pandemic, Mar. 15, 2020, available at https://naij-usa.org/images/uploads/newsroom/2020.03.15.00.pdf.
[13] See, e.g., Gov’t Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (June 2017).
****************
Basically, confirms what AILA, NAIJ, our Round Table, NGOs, and much of the media have been saying for a long time now! Obviously, the Dems lack the power in the Senate to take effective action to eliminate EOIR and replace it with an independent Article I Court, at present. Hopefully, that will be remedied in November.
In the meantime, what’s the excuse of the Article IIIs for continuing to allow this mockery of our Constitution and parody of justice to continue to daily inflict abuse on their fellow humans?
As the COVID-19 pandemic continues to spread throughout the United States, immigration courts around the country remain in turmoil.
The Executive Office for Immigration Review (“EOIR”) initially postponed all non-detained hearings when lockdowns began in March. However, EOIR refused to close all courts. Hearings for detained immigrants and unaccompanied children continued, despite the risks. Now, nearly five months later, EOIR still has no public plan to limit the spread of COVID-19 as it slowly begins to reopen courts around the country.
Immigration Courts Reopen Across the U.S.
Beginning in mid-June, EOIR began reopening some immigration courts, starting with the Honolulu immigration court.
Since then, courts have reopened for hearings in Boston, Dallas, Las Vegas, Hartford, New Orleans, Cleveland, Philadelphia, Newark, Baltimore, Detroit, and Arlington. However, following the rise in COVID-19 cases in Texas, the Dallas immigration court was open for less than a week before shutting again. It remains closed.
After the court reopened in Newark, immigration lawyers filed a lawsuit seeking to halt the court reopening. They explained that the court has not provided enough safety protocols. According to the lawsuit, they believe at least two deaths, including an immigration lawyer and a clerk for ICE in Newark, can already be traced to court hearings that occurred before the initial shutdown.
At a town hall, the National Association of Immigration Judges discussed the reopening. The union stated that EOIR doesn’t determine which courts reopen. Those decisions come from the local U.S. Attorney, who are political appointees working for the Department of Justice.
No Concrete Plan for Stopping COVID-19 Spread in Courts
Making matters worse, EOIR has still not explained what the criteria are for opening courts. The only safety guidelines the agency has published are simply those generally applicable to the public, such as asking people to socially distance, wear masks, and not appear in court if they have tested positive for COVID-19.
These limited guidelines do not provide anywhere near enough information to ensure safety for people appearing in court.
For example, EOIR fails to explain how translation services will work, which is but one of many unresolved questions about safety. In many courts, interpreters sit directly next to the person for whom they are interpreting so they can hear every word. But social distancing would be impossible in that scenario.
If EOIR wanted to replace all in-person interpretation with telephonic interpretation, that may not be a viable solution. Some people’s cases could be hurt by lower quality interpretation over what are often noisy phone lines.
Courts that have reopened have mostly been hearing only “individual” merits hearings, the equivalent of a trial in the immigration court system. Master calendar hearings, at which dozens of people wait in a courtroom together to review their immigration charges, are not currently happening in most reopened courts.
Lawyers report having cases advanced or postponed with little notice and almost no input. This can be particularly hard for individuals without attorneys. They may be unable to keep track of rapid changes at the courts.
This chaos underscores the need for a public safety plan. EOIR must ensure the public that it can run the courts safely.
Without that plan, the agency’s actions so far reinforce the White House’s goal of keeping the deportation machine running without taking public health into consideration. Before any further courts reopen, EOIR must make its plans clear, or else public health and the right to a fair day in court will continue to suffer.
Some of those caught up by these “crimes against humanity” won’t survive to tell their stories. So, it’s important that those of us who recognize this unending tragedy both document it and insure that history will not let those responsible escape accountability, be they Supreme Court Justices, political leaders, or lower level bureaucrats repeating the hollow “just doing my job” mantra as they enable or carry out these grotesque acts.
For those who watched “Immigration Nation,” how many times did you hear variations of the latter excuse from Federal bureaucrats as they heaped unnecessary, and in many cases illegal and immoral,carnage on their fellow human beings? How many times did you hear folks who are supposed to understand the system falsely use the “get in line” or “do it the right way” lies?
The ugly stain of the Trump regime’s illegal conduct, cowardice, cruelty, dishonesty, and inhumanity, and that of those who aided and abetted it, will not be wiped away!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Laura Lynch
Senior Policy Counsel
AILA
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Laura Lynch @ AILA writes:
I wanted to flag this lawsuit that was filed a few hours ago by AILA’s New Jersey Chapter seeking to stop in-person court appearances at the Newark Immigration Court. The attached complaint reveals the following:
“The Newark Immigration Court is no stranger to the devastating effects of COVID-19. The coronavirus spread through the court before it closed in March, and COVID-19 illnesses tragically caused the deaths of both a longtime private immigration attorney and a staffer at the immigration prosecutor’s office, as well as causing the serious illness of both a senior immigration prosecutor and a court translator. More recently, the head of Federal Protective Services at 970 Broad Street in Newark—the building where the Newark Immigration Court is housed—died from COVID-19.”
“Yet, despite the risks posed by the spread of COVID-19, and the actual serious illness and death it has already caused to people involved with the Newark Immigration Court, that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention (the so-called “non-detained docket”). Moreover, even though immigration law and regulations provide for immigration hearings to take place by videoconference—and the Executive Office of Immigration Review, which operates the nation’s immigration courts, has touted its use of such videoconference hearings—the Newark Immigration Court does not provide the option for attorneys or others to appear by videoconference for cases on the non-detained docket.”
The Associated Press wrote a short article about this lawsuit.
It just keeps getting worse and worse. The malicious incompetents at DOJ/EOIR keep endangering lives in an out of their so-called “courts” while those supposedly responsible for “justice in America” let it happen. This is a “Third World Dictatorship-Style Meltdown” happening right here in our country.
How many will have to die or have their lives ruined before this dangerous and dysfunctional embarrassment to humanity is finally put out of its misery (not to mention the misery it brings to others).
This November, vote like your life depends on it! Because it does!
WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).
AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”
Among the recent actions taken by this administration to bias the immigration courts:
As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.
There are three groups blocking the way:
The Trump Administration, where due process only applies to Trump and his corrupt cronies;
GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.
The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.
I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands!
Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values.
What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws.
But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!
The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments.Time to throw the “non-believers” and their enablers out of office.
This November, vote like your life and our country’s existence depend on it! Because they do!
Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.
Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.
Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.
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Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.
Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”
The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.
Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.
Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.
“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”
Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.
While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
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Read the rest of Filipe’s article at the link.
Filipe’s final point in the article is one we should all keep in mind:
For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.
The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.
I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.
Another giant in our professional forest has fallen. Among other things, Bob will be remembered for his mastery of the laws of citizenship by acquisition.
Here is a link to a 2010 interview with Bob, and here is a link to a biography by his family. A photo of Bob is here.
The encomiums are flooding my inbox. Angelo A. Paparelli said, “Bob was a warm-hearted giant, an encyclopedia of immigration law, a gentle and genial humanitarian. Every encounter I had with him helped me be a better immigration lawyer and person.”
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I remember from my private practice days that Bob was always ready for a free consult on a “citizenship stumper.”
R.I.P., my friend and colleague! Fairness, scholarship, timeliness, respect, and teamwork, you did it all and inspired younger generations to do likewise!
Planned Asylum Overhaul Threatens Migrants’ Due Process
By Suzanne Monyak | June 12, 2020, 9:34 PM EDT
The Trump administration’s proposed overhaul of the U.S. asylum process, calling for more power for immigration judges and asylum officers, could hinder migrants’ access to counsel in an already fast-tracked immigration system.
The proposal, posted in a 161-page rule Wednesday night, aims to speed up procedures and raise the standards for migrants seeking protection in the U.S. at every step, while minimizing the amount of time a migrant has to consult with an attorney before facing key decisions in their case.
“It certainly sets a tone by the government that fairness, just basic day-in-court due process, is no longer valued,” said Shoba Sivaprasad Wadhia, director for the Center for Immigrants’ Rights Clinic at Penn State Law, University Park, Pennsylvania.
The proposed rule, which will publish in the Federal Register on Monday, suggests a slew of changes to the U.S. asylum system that immigrant advocates say would constitute the most sweeping changes to the system yet and cut off access for the majority of applicants.
Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said that it was as if administration officials took every precedential immigration appellate decision, executive order and policy that narrowed asylum eligibility under this administration and “wrapped them all in one huge Frankenstein rule that would effectively gut our asylum system.”
Among a litany of changes, the rule, if finalized, would revise the standards to qualify for asylum and other fear-based relief, including by narrowing what types of social groups individuals can claim membership in, as well as the very definitions of “persecution” and “torture.”
In doing so, the proposal effectively bars all forms of gender-based claims, for example, as well as claims from individuals fleeing domestic violence.
These tighter definitions and higher standards would make it difficult even for asylum-seekers who are represented to win their cases, attorneys said.
“I worry about how a rule like this can cause a chilling effect on private law firms, or even BigLaw, from even engaging with this work on a pro bono level because it’s just so challenging and this rule only puts up those barriers even more,” said Wadhia.
But for migrants without lawyers, the barrier to entry is particularly profound. For instance, the rule permits immigration judges to pretermit asylum applications, or deny an application that the judge determines doesn’t pass muster before the migrant can ever appear before the court.
This could pose real challenges for migrants who may not be familiar with U.S. asylum law or even fluent in English, but who are not guaranteed attorneys in immigration court.
“If you’re unrepresented, give me a break,” said Lenni B. Benson, a professor at New York Law School who founded the Safe Passage Project. “I don’t think my law students understand ‘nexus’ even if they’ve studied it,” she added, referring to the requirement that an individual’s persecution have a “nexus” to, or be motivated by, their participation in a certain social group.
“Giving all judges the authority to end an asylum application with no hearing at all is pretty jaw-dropping,” she said. “Those 90%-denial-rate judges are doing that with the respondent in front of them who’s already testifying about the persecution they’ve suffered or their fear.”
The proposal also allows asylum officers, who are employed by U.S. Citizenship and Immigration Services and are not required to have earned law degrees, to deem affirmative asylum applications frivolous, and to do so based on a broader definition of “frivolous.”
Currently, applicants must knowingly fabricate evidence in an asylum application for it be deemed frivolous. But the proposal would lower that standard, while expanding the definition of “frivolous” to include applications based on foreclosed law or that are considered to lack legal merit.
The penalty for a frivolous application is steep. If an immigration judge agrees that the application is frivolous under the expanded term, the applicant would be ineligible for all forms of immigration benefits in the U.S. for making a weak asylum claim, Collopy said.
“And under the new regulation, everything is a weak application,” she added.
Benson also said that allowing asylum officers to deny applications conflicts with a mandate that those asylum screenings not be adversarial.
When consulting for the U.S. Department of Homeland Security during the Obama administration, Benson had once supported giving asylum officers more authority to grant asylum requests on the spot when migrants present with strong cases from the get-go. But with this proposal, DHS “took that idea,” but then went “the negative way,” she said.
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“I can’t even think of a single client I have right now that could get around this,” Collopy said.
“It’s a fairly well-crafted rule,” said Yale-Loehr. “They clearly have been working on this for months.”
But it may not be strong enough to ultimately survive a court challenge, he said.
The proposal was met with an onslaught of opposition from immigrant advocates and lawmakers, drawing sharp rebukes from Amnesty International, the American Immigration Council and AILA, as well as from House Democrats.
Rep. Jerrold Nadler, D-N.Y., who chairs the House Judiciary Committee, and Rep. Zoe Lofgren, D-Calif., who leads the committee’s immigration panel, slammed the proposal in a Thursday statement as an attempt “to rewrite our immigration laws in direct contravention of duly enacted statutes and clear congressional intent.”
If the rule is finalized — the timing is tight during an election year — attorneys said it would likely face a constitutional challenge alleging that it doesn’t square with the due process clause by infringing on an individual’s right to access the U.S. asylum system.
And while the administration will consider public feedback before the policy takes effect, attorneys said it could still be vulnerable to a court challenge claiming it violates administrative law.
Benson said the proposed rule fails to explain why its interpretation of federal immigration law should trump federal court precedent.
“They can’t just do it, as much as they might like to, with the wave of a magic wand called notice-and-comment rulemaking,” she said.
Yale-Loehr predicted a court challenge to the policy, if finalized, could go the way of DHS’ public charge rule, which was struck down by multiple lower courts, and recently by a federal court of appeals, but was allowed by the U.S. Supreme Court to take effect while lawsuits continued.
If the policy is in place for any amount of time, it will likely lead to migrants with strong claims for protection being turned away, attorneys said. But Yale-Loehr didn’t believe it would lead to fewer asylum claims.
“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”
–Editing by Kelly Duncan.
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Read Suzanne’s full analysis at the above link.
Although nominally designed to address the current Immigration Court backlog by encouraging or even mandating summary denial without due process of nearly 100% of asylum claims, as observed in the article, the exact opposite is likely to happen with respect to backlog reduction.
As Professor Steve Yale-Loehr points out, finalization of these regulations would undoubtedly provoke a flood of new litigation. True, the Supreme Court to date has failed to take seriously their precedents requiring due process for asylum seekers and other migrants. But, enough lower Federal Courts have been willing to initially step up to the plate that reversals and remands for fair hearings before Immigration Judges will occur on a regular basis in a number of jurisdictions.
This will require time-consuming “redos from scratch” before Immigration Judges that will take precedence on already backlogged dockets. It will also lead to a patchwork system of asylum rules pending the Supreme Court deciding what’s legally snd constitutionally required.
While based on the Court Majority’s lack of concern for due process, statutory integrity, and fundamental fairness for asylum seekers, particularly those of color, shown by the last few major tests of Trump Administration “constitutional statutory, and equal justice eradication” by Executive Order and regulation, one can never be certain what the future will hold.
With four Justices who have fairly consistently voted to uphold or act least not interfere with asylum seekers’ challenges to illegal policies and regulations, a slight change in either the composition of the Court or the philosophy of the majority Justices could produce different results.
As the link between systemic lack of equal justice under the Constitution for African Americans and the attacks on justice for asylum seekers, immigrants, and other people of color becomes clearer, some of the Justices who have enabled the Administration’s xenophobic anti-immigrant, anti-asylum programs might want to rethink their positions. That’s particularly true in light of the lack of a sound factual basis for such programs.
As good advocates continue to document the deadly results and inhumanity, as well as the administrative failures, of the Trump-Miller White nationalist program, even those justices who have to date been blind to what they were enabling might have to take notice and reflect further on both the legal moral obligations we owe to our fellow human beings.
In perhaps the most famous Supreme Court asylum opinion, INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987), Justice Stevens said:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United. States acceded in 1968.
These proposed regulations are the exact opposite: without legislation, essentially repealing the Refugee Act of 1980 and ending U.S. compliance with the international refugee and asylum protection instruments to which we are party. Frankly, today’s Court majority appears, without any reasonable explanation, to have drifted away from Cardoza’s humanity and generous flexibility in favor of endorsing and enabling various immigration restrictionist schemes intended to weaponize asylum laws and processes against asylum seekers. But, are they really going to allow the Administration to overrule (and essentially mock) Cardoza by regulation? Perhaps, but such fecklessness will have much larger consequences for the Court and our nation.
Are baby jails, kids in cages, rape, beating, torture, child abuse, clearly rigged biased adjudications, predetermined results, death sentences without due process, bodies floating in the RioGrande, and in some cases assisting femicide, ethnic cleansing, and religious and political repression really the legacy that the majority of today’s Justices wish to leave behind? Is that how they want to be remembered by future generations?
Scholars and well-respected legal advocates like Professor Shoba Sivaprasad Wadhia, Professor Stephen Yale-Loehr, Professor Lenni Benson, and Dree Collopy have great expertise in immigration and asylum laws and an interest in reducing backlogs and creating functional Immigration Courts consistent with due process and Constitutional rights. Like Professor Benson, they have contributed practical ideas for increasing due process while reducing court backlogs. Instead of turning their good ideas, like “fast track grants and more qualified representation of asylum seekers, on their heads, why not enlist their help in fixing the current broken system?
We need a government that will engage in dialogue with experts to solve problems rather than unilaterally promoting more illegal, unwise, and inhumane attacks on, and gimmicks to avoid, the legal, due process, and human rights of asylum seekers.
As Professor Yale-Loehr presciently says at the end of Suzanne’s article:
“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”
Isn’t it time for our Supreme Court Justices, legislators, andpolicy makers to to recognize the truth of that statement and require our asylum system and our Immigration Courts to operate in the real world of refugees?
