Brooklyn Law – immigrationcourtside.com

🗽🧑🏻‍⚖️ BIA APPELLATE JUDGES LIEBOWITZ, BROWN, MANUEL WITH STRONG REVERSAL OF HIGH-DENYING IJ IN FIFTH — Nexis, PSG — Roberto Blum Reports! — “This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent,” Says Says Brooklyn Law Associate Dean Stacey Caplow!

Roberto writes:

Hello Judge,

Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.

P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

Best,

DPF!

RB

Here’s the panel decision:

BIA APPEAL REMAND (Redacted)

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

Thanks, Roberto.

As Roberto says:

This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!

Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?

I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?

Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!

The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.

It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?

Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!

Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?

These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”

When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.

The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.

Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law
PHOTO: Brooklyn Law website

As Dean Caplow cogently points out:

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/the-pathos-of-patel-v-garland

While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!

As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!

There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”

Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence). All of us who care about the future of American justice should be asking why he isn’t doing his job!

🇺🇸 Due Process Forever!

PWS

05-31-22

⚖️STACY CAPLOW @ AILA IMMIGRATION COURTS ARE SINKING — ROUND TABLE 🛡⚔️ FIGHTING FOR CHANGE!

“Sir Jeffrey” Chase reports:

Hi all: A new volume of the AILA Law Journal was released yesterday. It contained an article by Stacy Caplow, co-director of Brooklyn Law School’s Safe Harbor Project, called The Sinking Immigration Court: Change Course, Save the Ship. I’m not sure if all can access it, but the link is:

https://www.aila.org/File/Related/19110103g.pdf#page=40. It is a very much worth reading generally, but I wanted to highlight the following mention of our group at pp. 49-50:

The Round Table of Former Immigration Judges, “a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system,” bears witness to the degrading of the court and, speaking with the voice of years of experience, has been an increasingly active and vocal critic of recent developments at the court both before Congress and as amicus curiae.

There are also citations to a couple of our group’s statements (including one to Congress) and an amicus brief filed with the Supreme Court in the footnotes.

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

How come the Biden Administration, and particularly AG Garland, don’t “get it?”

🇺🇸 Due Process Forever!

PWS

04-28-22

🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

“Floaters” — So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

https://www.washingtonpost.com/opinions/2022/01/05/president-biden-broke-his-promise-separated-migrant-families/

Opinion by the Editorial Board

January 5 at 2:18 PM ET

When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.

President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”

Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.

The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.

The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.

Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.

Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.

By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.

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

Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!

“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.

The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!

If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand up for the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!

I’m not the only one to note and question Garland’s uninspiring performance as Attorney General at a time of existential crisis. https://www.sfchronicle.com/opinion/editorials/article/Editorial-Merrick-Garland-isn-t-going-to-save-16752522.php?utm_source=newsletter&utm_medium=email&utm_content=headlines&utm_campaign=sfc_opinioncentral&sid=5bfc15614843ea55da6b8709

For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”

As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)

It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.

🇺🇸 Due Process Forever!

PWS

01-07-22

⚖️🗽👩🏽‍⚖️ASSOCIATE DEAN STACY CAPLOW @ BROOKLYN LAW ON CYRUS MEHTA BLOG — Our Immigration Courts Are Sinking — Can Lucas Guttentag Lead The Transformational Practice & Culture Changes Necessary to Save Them? — “[O]ne of the two obvious source of experienced immigration attorneys—immigrant advocates—is barely represented [among the many Immigration Judges selected over the past two decades.]”

http://blog.cyrusmehta.com/2021/08/the-sinking-immigration-court-change-course-save-the-ship.html

Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]

No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.

. . . .

Is there a life preserver on this sinking ship? Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]

Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.

Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.

Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.

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Read the complete article at the link.

I just hope that Stacy and Cyrus have sent copies of this article to Lucas, Lisa Monaco, Merrick Garland, Vanita Gupta, Kristen Clarke, and the Chairs of the House and Senate Immigration Subcommittees!

Anti-immigrant, anti-asylum, misogynist culture (actively promoted by Sessions and Barr), biased and clearly defective judicial selection procedures, and the resulting lack of practical scholarship and human rights expertise are festering problems at EOIR. They must be solved now!

The virtual exclusion of progressive practical scholars and advocates — essentially, the best and brightest — from the “21st Century Immigration Judiciary” has been both systematic and intentional. Disturbingly, the Obama Administration produced results only marginally different from Bush II and Trump!

That’s why many of us were so shocked and outraged when Judge Garland continued to “honor” fatally flawed, biased, and exclusionary hiring practices by his predecessors.

Culture also plays a role in creating a biased judiciary. Why would a talented progressive expert, particularly a women of color, want to serve in a “bogus” judiciary that basically furthers racist narratives and myths, demeans women and minimizes their persecution (probably the most significant persecuted group in the world right now), and where the AG publicly slanders courageous private advocates while treating his “personally owned judges” like enforcement stooges.

The BIA has been “inflated” back to its “Schmidt-era” 23 Appellate Judges, after Ashcroft’s transparent “purge” cut the number to an unworkable 12 to remove the liberal judges (who were in the minority anyway). Yet, for Pete’s sake, there hasn’t been an outside appointment to the BIA since the Clinton Administration — more than two decades ago! Totally inexcusable.

And, this lack of outside expertise is a primary reason why EOIR is in deep trouble that threatens the stability of our entire justice system and democracy itself. A number of the existing BIA Members were selected NOT because of their demonstrated reputations for fairness, scholarship, respect, and timeliness, but because of their notoriety for denying almost every asylum case that came before them.

Here’s an excerpt from a letter that SPLC court observers sent to then Director Juan Osuna in 2017 describing the in-court bias of two Immigration Judges sitting in Atlanta:

In one hearing, an attorney for a detained respondent argued that his client was neither a threat to society nor a flight risk. 19 In this hearing, IJ Cassidy rejected the respondent’s request for bond, stating broadly that “an open border is a danger to the community.” He then analogized an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let that person in. The attorney disagreed with IJ Cassidy, who then responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” The attorney again disagreed with both claims. IJ Cassidy concluded the hearing by stating that the credible fear standard is not a proper test for review of asylum seekers, wholly disregarding the established legal standard for such cases.20 In a private conversation after this case, IJ Cassidy told the observer that the cases that come before him involve individuals “trying to scam the system” and that none of them want to be citizens. He also remarked that he thought the U.S. should be more like Putin’s Russia, where “if you come to America, you must speak English.”21 In another hearing, IJ Wilson told a respondent that “this case is like every case . . . came in from Mexico for medical treatment then try to claim asylum.”22 [text of footnotes omitted].

Director Osuna resigned a short time later, apparently in response to his concerns about the legitimacy of policies that the Trump immigration kakistocracy at DOJ intended to pursue. (Tragically, he died a short time later.) I am unaware that James McHenry, Osuna’s successor, hand-picked by AG Jeff “Gonzo Apocalypto” Sessions to “deconstruct due process @ EOIR” ever undertook a thorough investigation or that any sanctions were imposed upon these judges. But, stunningly, both were later appointed to the BIA by former AG Barr and continue to serve today under Garland.

These are the types of life-threatening, humanity-degrading, anti-due-process actions that became routine at EOIR over the past four years, and caused my friend and expert Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law to ask in a recent press report: “How can you have a fair game when the referee is unfair?” https://immigrationcourtside.com/2021/08/03/😎👍🏼good-news-justice-even-as-latest-report-shows-massisive-failure-👎🏽🤮-eoir-poor-judging-politicized-practices-unhel/

Obviously, you can’t have a “fair game” under these circumstances. That was the whole point of the Trump DOJ, along with some gratuitous cruelty, malicious incompetence, and outright scofflaw behavior thrown in!

As Dean Caplow points out, the solutions aren’t “rocket science.” 🚀 But, so far, the problems EOIR continue to fester and undermine American justice!

🇺🇸Due Process Forever!

PWS

08-04-21

Roberto writes:

🇺🇸 Due Process Forever!

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“Sir Jeffrey” Chase reports:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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