"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”)
Fresh off third-party revelations of chronically unreliable data, poor record keeping, and mismanagement of interpreter funds, to name just a few management failures that have recently come to light, EOIR tries to jam an ill-advised reopening plan down the throats of stakeholders and their own employees without prior consultation. No wonder the backlog grows astronomically!
One way to get the backlog under control would be to solicit the input of the public, the Judges’ representative (NAIJ), court staff, and ICE counsel. These are the folks who know most about what’s on the docket and how best and most safely to get cases moving again. To state the obvious: Bureaucrats in EOIR headquarters and politicos at DOJ who don’t actually adjudicate local cases are in the worst position to make these decisions in a vacuum.
Competent court management and backlog reduction requires a plan developed with input from all interested parties. EOIR’s wacko “my way or the highway” approach to court management can only lead to more “Aimless Docket Reshuffling” and even bigger backlogs.
The letter linked above offers EOIR lots of practical, common sense ideas for improving the courts and avoiding backlog creating and life threatening mistakes. EOIR must start paying attention to the experts rather than kowtowing to the politicos at DOJ.
White House prepares new immigration limits, using coronavirus as cover
7:40 PM EDT June 9, 2020 Washington
The Trump administration is preparing to roll outanother set of restrictions on legal immigration, citing the impact of the coronavirus pandemic, even as it argues for the reopening of the US economy, according to sources familiar with the deliberations.
Despite a push from President Donald Trump to move past the pandemic, the administration is continuing to usher forward immigration measures, citing the outbreak and its toll on the economy.
One of the key figures behind the push to limit immigration is Stephen Miller, Trump’s lead immigration adviser and the architect of the President’s hardline immigration agenda. In April, Trump signed an executive order barring some immigration to the US after teasing an outright ban on immigration to the country. Trump argued that the order was needed to protect American jobs.
Against the backdrop of the coronavirus pandemic, the administration has pressed forward with a series of immigration measures that, prior to coronavirus, had struggled to break through. Among those changes is the closure of the southern border to migrants, including those seeking asylum, unless certain conditions are met.
After the President’s April proclamation, Miller cast the move as a first step toward reducing the flow of immigrants coming into the United States. That proclamation set up deadlines for review, one of which is approaching this weekend, and left the possibility open for its extension or modification.
The economic argument is expected to be raised again in an anticipated expansion or new immigration executive order. While Trump has touted recent job numbers,unemployment numbers remain high — though businesses have said in a series of letters to the President that continued immigration is important for economic recovery.
Interest groups, businesses and experts are fighting any new restrictions, saying that visas allowing immigrants to temporarily work in the US are critical to the economy.
“Why would he want to cut off critical workforce that will help the economy recover?” said Greg Chen, director of government relations for the American Immigration Lawyers Association.
“It’s not a rational or reasonable approach to the stated goals of what they’re trying to achieve, which only points to the underlying purpose of effectuating the President’s campaign goals of cutting off immigration,” Chen added.
Trump pledged the previous order would “ensure that unemployed Americans of all backgrounds will be first in line for jobs as our economy reopens.”
The White House did not immediately comment for this story.
CNN previously reported that Trump’s political advisers view the immigration steps as motivating for his base supporters at a moment when the President’s key election message — a strong economy — is badly weakened by the pandemic.
Legal immigration, which has already taken a hit during the outbreak, is again in focus in deliberations about an anticipated immigration executive order.
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Read the rest of Priscilla’s article at the link.
Emboldened by the lack of judicial pushback and absence of legal and moral leadership from the Supremes on racial injustice, the regime is planning an all-out assault on non-white immigration with coronavirus as a cover. Blacks and Latinos have already been disproportionately affected by the Cornoavirus, which has been of little concern to Trump except as it relates to his reelection schemes. Now, sensing lack of support for racial justice from a Federal Judiciary already stacked with far rightists raced by Mitch through the Senate, Trump, Miller, Barr, Wolf, and their cronies see a chance to further their dehumanization and “Dred Scottification” of the other.
Sure, it’s despicable! But, when those whose responsibility it is to promote racial justice and resist Executive abuses go AWOL, that’s what tyrants do! Even incompetent tyrants can sense institutional weaknesses and lack of moral leadership in others.
Michelle Hackman Immigration Reporter Wall Street Journal
Michelle Hackman reports for the WSJ:
WASHINGTON—The Trump administration, which has used the coronavirus health emergency to expel migrants at the border without allowing them to apply for asylum, faces its first court challenge over the practice in a lawsuit filed on behalf of a 16-year-old boy.
Since President Trump declared a public-health emergency in March, immigration agents have turned back nearly all migrants, including children, at the border without providing a chance to file asylum claims. The government invoked a 1944 public-health law allowing it to expel any noncitizen who poses a threat of spreading disease during an emergency. It extended that provision indefinitely in May.
The new process overrides immigration laws that allow any foreigner on American soil with a credible fear of persecution to apply for asylum, and laws prohibiting migrant children from being deported.
The lawsuit was filed in the district court in Washington by the American Civil Liberties Union on behalf of a 16-year-old boy from Honduras, known only by his initials J.B.B.C. He crossed the border in early June to join his father, who is living in the U.S. and awaiting his own immigration case to be heard, after fleeing what the suit described as “severe persecution” in his home country.
Under the typical process, border agents would have turned over the child to the Department of Health and Human Services, which runs a network of migrant shelters for children across the country and seeks to find them suitable guardians. Instead, border agents detained the boy in El Paso, Texas, and plan to deport him imminently, in accordance with the public-health emergency process.
Late Tuesday evening, Judge Emmet G. Sullivan granted J.B.B.C. a temporary restraining order, ordering the government not to deport him through at least Wednesday at midnight.
The White House and the Department of Homeland Security didn’t immediately respond to requests for comment.
The lawsuit’s supporters acknowledge that the suit is a gamble. If a federal judge rules that immigration laws can be bypassed during an emergency—a novel application of the public-health law—the government would gain broad new authority. But not suing, they say, could allow deportations without due process to continue.
“If the courts don’t step in, the Trump administration will continue to indefinitely strip refugees of the right to seek asylum,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
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Read the rest of Michelle’s article at the link.
The name of the use is J.B.B.C. v. Wolf.
So far, in showing no genuine concern for human rights, the rule of law, or overt racism in major non-legislative eradications of asylum, refugee, and immigration protections by a scofflaw Administration, which has made only cosmetic efforts to disguise its racist immigration agenda, a Supremes’ majority has sent a strong chilling signal to lower Federal Judges willing to stand up for racial justice, equal justice before the law, and Executive accountability. Will the Trump regime continue to literally “get away with attempted (or actual) murder” of children and other asylum applicants? How far does the Supremes’ majority’s resolve not to give Black and Brown lives and rights their deserved legal protections, and to fold in the face of Trump’s racist bullying, extend?
Due Process Forever! Complicit Courts Never!
This November, vote like your life depends ons it! Because it does!
The United States was built, in part, by immigrants—and the nation has long been the beneficiary of the new energy and ingenuity that immigrants bring. Today, 14 percent of the nation’s residents are foreign-born, over half of whom are naturalized citizens. Nearly 75 percent of all immigrants, who come from diverse backgrounds across the globe, report speaking English well or very well.
Immigrants make up significant shares of the U.S. workforce in a range of industries, accounting for over a third of all farming, fishing, and forestry workers—as well as nearly 25 percent of those working in computer and math sciences. The highest number of immigrants work in the health care and social service industry, with over 4 million immigrants providing these services. As workers, business owners, taxpayers, and neighbors, immigrants are an integral part of the country’s diverse and thriving communities and make extensive contributions that benefit all.
One in seven U.S. residents is an immigrant, while one in eight residents is a native-born U.S. citizen with at least one immigrant parent.
In 2018, 44.7 million immigrants (foreign-born individuals) comprised 14 percent of the national population.
The United States was home to 21.9 million women, 20.3 million men, and 2.5 million children who were immigrants.
The top countries of origin for immigrants were Mexico (25 percent of immigrants), India (6 percent), China (5 percent), the Philippines (4 percent), and El Salvador (3 percent).
In 2018, 39.4 million people in the United States (12 percent of the country’s population) were native-born Americans who had at least one immigrant parent.
Over half of all immigrants in the United States are naturalized citizens.
22.6 million immigrants (51 percent) had naturalized as of 2018, and 8.4 million immigrants were eligible to become naturalized U.S. citizens in 2017.
The majority of immigrants (74 percent) reported speaking English “well” or “very well.”
Immigrants in the United States are concentrated at both ends of the educational spectrum.
Nearly a third of adult immigrants had a college degree or more education in 2018, while over a fourth had less than a high school diploma.
Education Level
Share (%) of All Immigrants
Share (%) of All Natives
College degree or more
32
33
Some college
19
31
High school diploma only
22
28
Less than a high-school diploma
27
8
Source: U.S. Census Bureau, 2018 American Community Survey 1-Year Estimates.
Millions of U.S. citizens live with at least one family member who is undocumented.
10.7 million undocumented immigrants comprised 24 percent of the immigrant population and 3 percent of the total U.S. population in 2016.
16.7 million people, including 7 million born in the United States, lived in the country with at least one undocumented family member between 2010 and 2014.
During the same period, 1 in 12 children in the country was a U.S. citizen living with at least one undocumented family member (5.9 million children in total).
The United States is home to over 652,000 Deferred Action for Childhood Arrivals (DACA) recipients.
Approximately 652,880 active DACA recipients lived in the United States and its territories as of 2019, while DACA has been granted to over 2.5 million people in total since 2012.
An additional 363,000 people in the United States would satisfy all but the educational requirements for DACA, and another 39,000 would be eligible as they grew older.
One in six U.S. workers is an immigrant, together making up a vital part of the country’s labor force in a range of industries.
28.4 million immigrant workers comprised 17 percent of the U.S. labor force in 2018.
Immigrant workers were most numerous in the following U.S. industries:
Industry
Number of Immigrant Workers
Health Care and Social Assistance
4,124,557
Manufacturing
3,437,569
Accommodation and Food Services
3,022,991
Retail Trade
2,979,800
Construction
2,858,953
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
The largest shares of immigrant workers were in the following U.S. industries:
Industry
Immigrant Share (%) (of all industry workers)
Agriculture, Forestry, Fishing, and Hunting
26
Construction
23
Administrative Support and Waste Management and Remediation Services
22
Other Services (except Public Administration)
21
Accommodation and Food Services
20
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
Immigrants are an integral part of the U.S. workforce in a range of occupations.
In 2018, immigrant workers were most numerous in the following occupation groups:
Occupation Category
Number of Immigrant Workers
Transportation and Material Moving Occupations
2,683,238
Sales and Related Occupations
2,580,721
Management Occupations
2,529,218
Office and Administrative Support Occupations
2,494,354
Construction and Extraction Occupations
2,487,351
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
The largest shares of immigrant workers were in the following occupation groups:
Occupation Category
Immigrant Share (%) (of all workers in occupation)
Farming, Fishing, and Forestry Occupations
38
Building and Grounds Cleaning and Maintenance Occupations
31
Construction and Extraction Occupations
25
Computer and Mathematical Occupations
24
Life, Physical, and Social Science Occupations
22
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
Undocumented immigrants comprised 5 percent of the workforce in 2016.
Immigrants in the United States contribute billions of dollars in taxes.
Immigrant-led households across the United States contributed a total of $308.6 billion in federal taxes and $150 billion in combined state and local taxes in 2018.
Undocumented immigrants in the United Statespaid an estimated $20.1 billion in federal taxes and $11.8 billion in combined state and local taxes in 2018.
DACA recipients and those meeting the eligibility requirements for DACA paid an estimated $1.7 billion in combined state and local taxes in 2018.
As consumers, immigrants add over a trillion dollars to the U.S. economy.
In the United States, residents of immigrant-led households had $1.2 trillion in collective spending power (after-tax income) in 2018.
Immigrant entrepreneurs in the United States generate tens of billions of dollars in business revenue.
3.6 million immigrant business owners accounted for 21 percent of all self-employed U.S. residents in 2018 and generated $84.3 billion in business income.
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Unfortunately, reality often has less “grabbing power” than the sensationalist White Nationalist BS narratives ☠️🤮👎 peddled by Trump, his toadies, and some of his backers.
The bottom line is actually pretty simple: America was built by immigrants and depends on the essential contributions of new immigrants, regardless of status, for survival and prosperity. 🇺🇸👍
That makes Trump’s dark nativist vision of America look like a “suicide pact” rather than a path to “greatness.” It’s particularly important for members of the younger generation to reject the Trump regime’s dark dishonest plans 🏴☠️ that write many of them, their friends, colleagues, and loved ones out of America’s future in favor of a “kakistocracy of corrupt grifters.”
This November, vote like your life depends on it. Because it does!
Suzanne Monyak Senior Reporter, Immigration Law360Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesLaura Lynch Senior Policy Counsel AILA“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”
The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.
Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”
“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.
While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.
Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.
Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.
Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.
“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.
A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.
She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”
During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.
“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.
High Rates of Asylum Denials
Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.
All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.
The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.
Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.
However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.
“You’re looking to deny cases at that point,” he said.
The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.
One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.
“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”
A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.
In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.
In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.
According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.
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Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link.I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.
I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️
This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.
And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!
Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” ona number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.
In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻
That’s why I say: “Constantly Confront Complicit Courts 4 Change.”
The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.
“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”
An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”
“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”
New roles
Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.
McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.
They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.
EOIR said its office first proposed that designation in 2000.
“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.
True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.
“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.
Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.
Faster hiring process
In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.
The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.
McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.
In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.
The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.
“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.
Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”
According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.
EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.
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Read Tanvi’s full article at the link.
Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!
The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.
There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!
What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.
Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”
Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.
Even with tons of “undue deference” given to the BIAby the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.
The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”
INTERESTING HISTORICAL FOOTNOTE:The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.
Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:
Jacqueline Thomsen reports for the National Law Journal:
A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.
U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.
He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.
Nichols wrote that “the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings.” But he found the detained immigrants named in the suit do not have “an imminent in-person hearing,” and therefore lack standing.
“More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action,” Nichols wrote.
The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.
Nichols said the lawyers “fail to explain” how the policies have caused the immigrants “to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.”
He further said the immigration lawyers have failed to show that “immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings.”
. . . .
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Those with access to the NLJ (everyone can get 3 free “non-premium” articles per month by registering) can read Jacqueline’s full article and get Judge Nichols’s full opinion at the above link.
A slight clarification of the last sentence in Jacqueline’s full article: “Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.”
Immigration Judges are “administrative judges” who work for the Attorney General. Unfortunately, they are not “Article I Judges,” which would make them a true independent judiciary.
Immigration Judgeswould like to beArticle I Judges. Most immigration and judicial experts agree that they should be. There are a number of legislative proposals circulating to establish an independent Article Immigration Court. But, alas, notwithstanding the obvious and pressing need, Congress is nowhere close to legislating the necessary change.
So, these current blatantly unconstitutional “captive courts” operating under the DOJ will continue to stagger on, taking innocent lives and trampling due process and fundamental fairness in the process. Grimly, as I had predicted, it’s apparently going to take some actual dead bodies⚰️of migrants and perhaps their lawyers piling up on the courthouse steps to get either the Article IIIs or Congress to pay serious attention to this unfolding disaster which seems to operate just enough beneath their “radar screens” to allow them to ignore or, as in this case, paper it over.
Immigration judges and employees at the Executive Office of Immigration Review said the agency’s informal policy to keep offices and courts open puts deportations over workers’ safety.
APRIL 20, 2020 05:31 PM ET
For weeks, employees at the Executive Office of Immigration Review’s immigration courts and offices have noticed a trend: whenever someone exhibits coronavirus symptoms, the agency quietly shuts the facility down for a day or two, cleans the office, and then reopens.
The frequency of these incidents, combined with the apparent refusal by management to take more proactive steps, like temporarily closing immigration courts altogether or instituting telework for EOIR support staff, have employees and judges fearing that the Trump administration is more concerned with keeping up the volume of immigration case decisions than the health of its own workforce.
Since Government Executive first reported on an instance of an employee with COVID-19 symptoms at a Falls Church, Virginia, EOIR office last week, there have been three additional incidents at that facility, including one where the person eventually tested positive for coronavirus. An office in the Dallas-Fort Worth area also was closed for two days in March after someone exhibited symptoms of the virus.
Additionally, the agency has announced on its official Twitter account more than 30 immigration court closures, most only for one or two days, across the country. Although in most instances officials do not explain the closures, National Association of Immigration Judges President Ashley Tabaddor said that if there is no reason listed, “you can be sure” it is a result of coronavirus exposure.
“Everything is reactive,” Tabbador said. “They put everyone at risk, and then when there’s an incident reported, they shut down the court for a day and then force people to come back to work. At Otay Mesa [in San Diego] there’s a huge outbreak, but they still haven’t shared that information . . . Sometimes we get the info and sometimes we don’t, so we don’t know how accurate or complete it is. There’s no faith that everyone who needs to be notified has been notified.”
Nancy Sykes, president of the American Federation of Government Employees Local 2525, which represents staff at EOIR’s office in Falls Church said the amount of information provided to employees about coronavirus-related incidents has actually decreased in recent weeks. Although after the first incident, EOIR Director James McHenry emailed staff and provided information about when the employee was symptomatic and in the office, subsequent notifications were sent out by Acting Board of Immigration Appeals Chairman Garry Malphrus and omitted key information about when symptomatic individuals were in the building.
“Employees are scared, they’re concerned,” Sykes said. “They don’t really trust what’s coming from management just because of the lack of details being shared. There’s a lag in information: by the time something is revealed, so much time has passed, so nobody’s clear how that process works and why it takes so long to get notice out to employees.”
In a statement, EOIR spokeswoman Kathryn Mattingly said that the agency “takes the safety, health and well-being of employees very seriously,” but that the workforce is critical to ensuring the due process of detained suspected undocumented immigrants.
“Accordingly, EOIR’s current operational status is largely in line with that of most courts across the country, which have continued to receive and process filings and to hold critical hearings, while deferring others as appropriate,” Mattingly wrote. “Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few courts have closed completely.”
A Series of Half Measures
Agency management has taken some steps to mitigate employees’ exposure to COVID-19. On March 30, the agency postponed all hearings related to individuals who are not being detained while they await adjudication. The agency is also encouraging the use of teleconferencing, video-teleconferencing and the filing of documents by mail or electronically, and some attorneys, paralegals and judges have been able to make use of telework to reduce the amount of time they spend in the office.
But thus far, the agency has refused to postpone hearings for detained individuals, a matter that is now the subject of a federal lawsuit brought by immigration advocates and attorney groups. And the agency has denied telework opportunities to support staff in EOIR offices and immigration courts across the country.
Sykes said the lack of telework is in part a capacity issue—the agency does not have the amount of laptops on hand to distribute to employees. But she suggested that local management may be prohibited from encouraging workplace flexibilities by agency or department leadership.
“We’ve asked management about doing something where you could have employees come in shifts every other day, or over a week’s time in rotation to pick up and drop off work materials, so that there’s less exposure when coming into the office,” she said. “But they said they have not been authorized to make those types of changes to our business. When my board management says they don’t have the authority, that means it’s over their heads.”
Tabaddor said she has heard similar stories that everything judges and supervisors authorize regarding coronavirus response must be “cleared” by someone up the chain of command.
“Supervisory judges, our first line of supervisory contact, they were told that they cannot put anything in writing about the pandemic or COVID,” she said. “Anything they want to do related to that has to be cleared by HQ and, essentially, the White House. So, to date, they haven’t been told what standards and protocols are to be used. The only thing they’ve been told is if there’s a report of any incident, they are to kick it up to HQ and wait for instructions.”
On Monday, McHenry sent an email to EOIR employees announcing that the agency has ordered face masks for employees to wear when they report to the office, and said they would be available “next week.”
“Once delivered, supervisors will provide their staff with information regarding distribution to employees who are not telework eligible and are working in the office,” McHenry wrote. “Even while using face coverings, however, please continue to be vigilant in maintaining social distancing measures to the maximum extent practicable and in following CDC guidance.”
Production Over People
Agency employees said what they have seen over the last month suggests that the agency is prioritizing working on its more than 1 million case backlog, and enabling the Homeland Security Department to continue to apprehend suspected undocumented immigrants, at the expense of the wellbeing of its workforce.
“Everything is designed under the rubric that the show must go on,” Tabbador said. “While we’ve been focused on public health first . . . the department says, ‘Nope, we need to make sure that the machinery continues. To the extent that we can acknowledge social distancing as long as business continues, we can do it. But between business and health considerations, business as usual supersedes health.”
Sykes said the agency’s resistance to making basic changes to protect its employees is troubling.
“To me, the only other explanation is the immense backlog that we have of immigration appellate cases building up, and the need to continue working on that backlog even in light of the current pandemic,” she said. “It’s very unnerving, because I believe this will continue, and I don’t have any other indication that we’re not going to just continue operations as is. We now finally have a confirmed case [in the building] and there’s still no change.”
In an affidavit filed in response to the lawsuit seeking to postpone immigration court hearings for detained individuals, McHenry said he has given individual immigration courts leeway to respond as needed to the COVID-19 outbreak in their communities.
“Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court,” McHenry wrote. “In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a ‘one size fits all’ policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and means through which to hold hearings.”
But he also suggested it could hamper the work of Immigration and Customs Enforcement and the ability of the Border Patrol to keep arresting suspected undocumented immigrants.
“The blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an [immigration judge] that may lead to the alien’s release,” he wrote.
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Thanks, Laura, for “packaging” this so neatly for further distribution! And many thanks to Erich Wagner over at Government Executive for “keeping on” this story he originally reported and that I also posted @ Courtside. https://wp.me/p8eeJm-5mO
Nice to know that someone is looking out for the public interest here, even if EOIR isn’t.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Wow, these self-serving “GrimGrams” ☠️⚰️ from McHenry must be very comforting to the EOIR employees 😰🧫 whose health 🤮 and safety ☠️ is on the line, not to mention the possibility that they will eventually infect their own families.😰
Deportations over safety, sanity and public health at EOIR. It’s just “business as usual” in the Clown Courts! 🤡
WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.
EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
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.
Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.
Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
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Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
. . . .
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.
Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open.
The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger.
“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”
Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said.
In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders.
“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”
“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.
. . . .
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Read the rest of Liz’s article at the link.
Looks like the dead bodies will have to pile up before the Article IIIs and EOIR will take action. As the rest of us know, but to which U.S District Judges & EOIR appear willfully blind, by the time individuals show symptoms and begin dying, it’s too late to stop the spread. The larger community has already been infected.
I wonder what it is that gives both EOIR officials and Article III Judges such great confidence that they and their families will escape the consequences of their irresponsible behavior? Maybe, it’s that both EOIR Senior Execs and Article III Judges manage to studiously avoid “direct exposure” to Immigration Courts. “Below their pay grade,” so to speak.
But, according to folks like Dr. Fauci, who possibly knows even more about infectious diseases than EOIRDirectorMcHenry and the Federal Judges who continue to defer to the irresponsible EOIR “guidance,” nobody will be immune.
So far, the U.S. has done the worst job of any developed country in the world of “flattening the curve.” Inevitably, we eventually will become the “world leader” in coronavirus deaths. After observing the inept response of EOIR and the failure of the U.S. District Courts to promptly intervene on the side of medical knowledge, common sense, and preserving human lives, I can now see why we are failing as a nation to take the extreme measures necessary for self-preservation.
I would think that as lawyers, judges, and other members of the legal community start dying as a result of EOIR’s policies, that the officials responsible eventually will face legal actions brought by surviving family members and colleagues. Life tenure and the judicial doctrine of “absolute immunity” will protect the feckless Federal Judges from legal accountability. But, it won’t protect them and their reputations from moral accountability and the “judgements of history” which are likely to be harsh and as unforgiving as the Trump Immigration Kakistocracy’s treatment of the most vulnerable among us and their brave lawyers.
Due Process Forever! Trump’s Immigration Kakistocracy & Feckless Federal Courts, Never!
WASHINGTON, DC—In a lawsuit filed today in the U.S. District Court for the District of Columbia, several immigration lawyer groups and individuals with pending immigration cases demanded that the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) take immediate necessary actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.
The American Immigration Lawyers Association (AILA), the Immigration Justice Campaign— a joint initiative of the American Immigration Council and AILA—represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) call for the government to take the following measures:
suspend in-person immigration hearings for detained individuals and provide robust remote access alternatives for detained individuals who wish to proceed with their hearings for the duration of the COVID-19 pandemic;
guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives;
provide Personal Protective Equipment for detained noncitizens and legal representatives who need to meet in person in facilities where PPE is required for entry;
alternatively, release detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or with the immigration court.
The global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. The Centers for Disease Control and Prevention has specifically highlighted in-person court appearances as a risk factor for coronavirus outbreaks. Federal courts and the Bureau of Prisons via the Attorney General have taken measures to minimize the health risk. Yet, EOIR, a component of DOJ which oversees immigration courts, has not taken the same protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. The CDC has also highlighted the particularly acute dangers of COVID-19 outbreaks in detention, and more than 3,000 public health experts have called for the release of immigrants from detention. However, ICE has refused to take measures to release or protect immigration detainees from harm and continues to transport them back and forth from courthouses while denying them critical access to counsel during this crisis.
AILA Director of Federal Litigation Jesse Bless stated, “Simply put, EOIR and ICE need to adopt flexible measures to ensure safety for respondents and ensure access of counsel is not denied. Access to counsel is integral to the fundamental constitutional right to due process and recent incoherent and contradictory policies from EOIR and ICE are endangering the health and constitutional rights of countless individuals, including members of their own staff.”
Immigration Justice Campaign Director at the American Immigration Council Karen Siciliano Lucas said, “Through our Immigration Justice Campaign, we have seen what the COVID-19 pandemic means for our volunteer attorneys and their clients in detention. They struggle to communicate with each other and have real concerns about how they can fairly present their immigration cases. The government must immediately close immigration courts and utilize remote opportunities until the coronavirus is under control to protect the health of immigrants, immigration judges, court staff, and surrounding communities alike. Our nation is only as healthy as its people. We must call on our leaders to do all they can to protect and care for everyone—regardless of immigration status.”
“EOIR and ICE have failed to take critical actions necessary to protect the health and safety of detained immigrants and their attorneys, creating disastrous public health conditions in detention centers and at immigration courts,” said Sirine Shebaya, Executive Director of the National Immigration Project. “Instead of releasing immigrants who do not need to be detained, ICE is choosing to keep them detained and deprive them of access to counsel, while EOIR proceeds with their hearings as though nothing has changed. The agencies must take the necessary measures to provide access to counsel and ensure the availability of robust alternatives for detained immigrants and attorneys who cannot proceed with in-person hearings at this time.”
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
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.
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As the Trump regime intentionally puts the public at risk in Immigraton Court and DHS’s “New American Gulag,” the public officials supposedly in charge of protecting the pubic and insuring the integrity of justice continue to operate with “malicious incompetence” and “criminal negligence.” Kakistocracy is bad! But, it becomes life-threatening in the time of true (rather than the regime’s usual bogus) emergency!
In a major departure from previous practice mandated by federal law, the Trump administration has begun quickly deporting immigrant children apprehended alone at the southern border.
Administration officials say they are following public health orders designed to prevent the spread of the coronavirus in the US, but opponents say they are using the health orders to skirt federal laws that govern the processing of unaccompanied minors.
The New York Times first reported that the Trump administration would apply to unaccompanied children from Central America a March 20 order issued by the Centers for Disease Control and Prevention (CDC) that bars the entry of those who cross into the country without authorization.
Previously, unaccompanied children from Central America picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement (ORR), where they would be housed in shelters across the country as they began officially applying for asylum and waited to be reunited with family members in the US.
On Monday, a US Customs and Border Protection official confirmed to BuzzFeed News that the agency was now applying the CDC order to children.
“All aliens CBP encounters may be subject to the CDC’s Order Suspending Introduction Of Persons From A Country Where A Communicable Disease Exists (March 20, 2020), including minors,” read a statement from CBP. “When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families quickly and safely, if possible.”
The statement noted that there is discretion for the agency to exclude certain unaccompanied children from the order if, for example, they show signs of illness.
Immigrant advocates told BuzzFeed News they were alarmed at the policy shift.
“Children arriving at the border, many of whom have endured unimaginable harm at home and on their journey, are the most vulnerable group encountered by border officials. Unaccompanied children are particularly vulnerable to trafficking,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. “The answer to coronavirus cannot be to put children in harm’s way.”
Eleanor Acer, the refugee protection director at Human Rights First, said the move was proof that the Trump administration was “using” a public health crisis “to advance their long-standing goal of overturning US laws protecting vulnerable children and people seeking asylum.”
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Read the rest of the article at the link.
Like all fascists, the White Nationalist nativists of the regime are always looking for new ways to pick on the most needy and vulnerable. And, what presents a better target for cruelty and abuse than unaccompanied kids, particularly when a health emergency offers “cover?”
The Dems sputter but can’t do anything except write letters that go in the regime’s waste baskets.
On March 23, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a sua sponte order in a case pending before it, ordering the Petitioner’s immediate release from detention “in light of the rapidly escalating health crisis, which public health authorities predict will especially impact immigration detention centers.” In taking such action, the court used its authority to protect those under its jurisdiction.This is what judges and courts are supposed to do.
In contrast, the leadership of EOIR, the agency which oversees our nation’s immigration courts, sees its mission quite differently. With shocking indifference to those subject to its authority, including its own employees as well as members of the public, EOIR’s present leadership seeks only to please its Department of Justice masters, much like a dog rolling over or playing dead to earn a pat on the head from its owner.
As we all began to comprehend the seriousness of the coronavirus pandemic weeks ago, EOIR refused to close immigration courts out of fear of sending a message contrary to Trump’s statements that the health crisis was a “hoax.” Christopher Santoro, the coward holding the title of Acting Chief Immigration Judge, ordered court staff to remove CDC-issued advisories on ways to help stop the spread (i.e. by not shaking hands) on the grounds that the immigration judges lacked the authority to hang such notices in their own courtrooms. In defense of his stupidity, Santoro offered the age-old excuse of the weak: that he was only following orders.
As the virus spread, and people began dying, EOIR kept its courts open far longer than it should have. An ICE attorney who represented the government throughout a crowded Master Calendar hearing in Newark, NJ on March 13 is presently in a coma in intensive care with COVID-19 fighting for his life. I’ve heard that an immigration judge in one of NYC’s immigration courts is presently ill with COVID-19 and pneumonia.There have been additional reports of others at immigration detention centers testing positive.
As cities locked down and sheltered in place, EOIR finally agreed to postpone non-detained hearings, but only until April 10. Hearings in detained courts continue to go forward.And for some reason, non-detained courts that were closed and should have remained so were reopened for the filing of documents only, with such openings announced by nighttime tweets. On Wednesday night, EOIR tweeted that several courts would “open” the next morning, without explaining whether that meant hearings that had previously been announced as postponed would instead go forward the following morning.As this occurred after business hours, there was no one to call for clarification. In fact, the opening was only to file documents.EOIR’s leadership (for want of a better term) has decided that all court filings due during the court closings are now due on March 30.Many lawyers in NYC have no way to meet this deadline, as their office buildings have been locked in compliance with the state’s shutdown order.
In order to accept these filings, EOIR is forcing court clerical staff to leave the safety of their homes, disobey the state PAUSE directive and expose themselves and their family members to possible infection in order to report to work. In NYC, traveling to work for most employees requires riding trains and buses, further increasing the risk of exposure.As schools are closed, how those court staff with child care needs will manage in a time requiring social isolation is unknown.
Furthermore, not all judges hearing detained cases are granting continuances despite the crisis. EOIR has not informed judges that the present crisis exempts them from meeting their performance metrics, which requires all judges to complete 700 cases per year, and to finish 95 percent of cases on the day of their first-scheduled individual hearing. Newly hired judges, who are on probation for two years, are therefore being forced to choose between their own job security and the health and welfare of all those who appear in their courts.
In recent days, EOIR has been besieged with letters from health care professionals, law professors, and various legal and advocacy organizations containing strong arguments to do what the Ninth Circuit had done instinctively and without having to be asked. In one of these letters, attorney George Terezakis, writing on behalf of the New York-based Association of Deportation Defense Attorneys (on whose Board of Directors I sit), described how the mother of a detained respondent who traveled from her home in Long Island to the court in Lower Manhattan by commuter train and subway to file a document for her son’s hearing was later diagnosed with the coronavirus. Terezakis continued: “Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees’ family members will foreseeably and inevitably kill someone…keeping the courts open ensures continued, needless infection, serious illness and death…”The letter continued: “This is a real crisis requiring real leadership to take decisive action that will place the safety of those under its jurisdiction ahead of other concerns. There is no escaping the inevitable consequences of inaction.”
As for Santoro, “I was only following orders” has historically fared poorly as a defense. Someone whose name is preceded by the title “Chief Immigration Judge” is required to stand up and take appropriate action in a time of crisis, and accept the consequences of such action. And for those in EOIR’s leadership chain who refuse to do so, it is incumbent on all of us to do everything in our power to ensure that they will be held fully accountable for their inaction under the next administration.
Copyright 2020 by Jeffrey S. Chase. All rights reserved. Reprinted with permission.
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Jason Dzubow The AsylumistHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).
EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–
NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.
And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“
One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.
Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.
Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.
NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”
The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.
Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.
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Thanks, Jeffrey, Jason, and Sue, my friends, for “telling it like it is!” Now is not the time for “go along to get along” bureaucratic responses.
Unfortunately, attorneys and court staff might now start paying with their lives for EOIR’s inexcusable two-decade failure to implement a functional e-filing system.
As one of my Round Table colleagues said, “Since when is a late night tweet ‘official notice?’” Don’t remember anything about “notice by tweet” in 8 CFR!
As I noted previously, J.R. and his tone-deaf, complicit Supremes effectively repealed the “Bivensdoctrine,” holding Federal officials responsible for “Constitutional torts” committed outside the scope of their official duties. They thereby essentially gave rogue Federal officials a “license to kill,” at least where the victim was merely an unarmed Mexican teenager. It appears that Barr, McHenry, and others in the “chain of command” are trying out their new “licenses.” They had better hope that J.R. & Co’s “willful blindness” andunwillingness to stand up for lives and Constitutional rights extend even when American citizen lawyers and court clerks are among the casualties.
Not surprisingly, EOIR’s contempt for due process and the lives of asylum seekers, families, children, and other migrants has expanded to include the lives of their own employees and members of the public forced to deal with this godawful, unconstitutional mess.
When the reckoning comes, we should not forget the negligent complicity of Congress as well as the Article III Courts for allowing the life-threatening, dysfunctional, unconstitutional mess that EOIR has become continue to operate and to threaten the health, safety, and welfare of all Americans.
