🤯👎🏽☠️🤮🆘STATS SHOW YET ANOTHER PREDICTABLE, HORRIBLE GARLAND FAILURE @ EOIR: “New Research Finds that Dedicated Docket Leads to High Rates of Deportation, Low Representation Rates, and Wastes Immigration Judges’ Time” — Duh!

 

From Austin Kocher:

https://austinkocher.substack.com/p/biden-administrations-dedicated-docket

. . . .

These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.

. . . .

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Read Austin’s findings at the link.

The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team. 

Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better. 

🇺🇸Due Process Forever!

PWS

01-14-22

☹️👎🏽🤡 TRAC: BUILD BACK BETTER MAY BE DOA, BUT “BUILD BACKLOG BIGGER (FASTER)” THRIVES @ GARLAND’S EOIR! — BACKLOG TOPS 1.5 MILLION WITH NO PLAN OR END IN SIGHT! — Backlog Building Rate Accelerates, As ADR Runs Amuck & Garland Shuns Expert Advice, Progressive Judicial Appointments, Creative Solutions! — Now On Pace To Break 2 Million Mark By End Of Summer 2022!

Michigan Stadium
Michigan Stadium, America’s largest, holds 107,601. Garland has added almost that to his EOIR backlog in the first two months of FY 2022. It would take 15 Michigan Stadiums to hold all the folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts. And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates!
Michigan Stadium Photo by Andrew Horne, Creative Commons License

Transactional Records Access Clearinghouse

Immigration Courts Now Face Backlog of Over 1.5 Million Cases

According to data updated today by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the number of pending cases in Immigration Court has now reached 1,559,855 as of the end of November 2021. The high number of pending cases puts additional pressure on Immigration Judges who are tasked with deciding these cases.

The Transactional Research Access Clearinghouse (TRAC) a research organization at Syracuse University created ‘Quick Facts‘ tools to provide a user-friendly way to see the most updated data available on the Immigration Courts. The tools include easy-to-understand data in context and provide quotable descriptions. Many of TRAC’s Immigration Court data tools have also been updated and can be viewed by clicking here.

Additional key takeaways from today’s data release include the following:

  • Immigration Courts recorded receiving 143,803 new cases so far in FY 2022 as of November 2021. This compares with 43,156 cases that the court completed during this two-month period.
  • According to court records, only 0.51% of FY 2022 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.
  • At the end of November 2021, 1,559,855 active cases were pending before the Immigration Court.
  • Harris County, TX, has the most residents with pending Immigration Court deportation cases (as of the end of November 2021).
  • So far this fiscal year (through November 2021), immigration judges have issued removal and voluntary departure orders in 24.0% of completed cases, totaling 10,357 deportation orders.
  • So far in FY 2022 (through November 2021), immigrants from Guatemala top list of nationalities with largest number ordered deported.
  • Only 20.7% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.
  • Immigration judges have held 4,193 bond hearings so far in FY 2022 (through November 2021). Of these 1,613 were granted bond.

For more information, see TRAC’s Quick Facts tools here or click here to learn more about TRAC’s entire suite of immigration tools.

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

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TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
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trac@syr.edu
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Wow! Garland “jacked up” the backlog by over 100,000 cases in the first two months of of FY 2022! Most impressive! That’s on a torrid pace to exceed 600,000 additional “warehoused” cases annually! At that rate, the Immigration Courts will hit the 2 million mark by the end of August 2022!

That puts the previous “Backlog Kings” Gonzo Apocalypto Sessions and Billy the Bigot Barr to shame! 

And, it’s being achieved with more than twice the number of Immigration Judges on board than at the end of the Obama Administration in 2017! After the indolent judicial recruitment and hiring of the Obama era (an incredible average of more than two years to fill a judicial vacancy), the Trump AGs were able to “pack” the Immigration Courts with many judges whose primary qualification appeared to be willingness to grind out removal orders without regard to much besides the DOJ’s virulent anti-immigrant policies, the need to cut corners, and the consistent elevation of expediency over due process and judicial excellence.

One logically might have expected Garland to focus on “unpacking” this mess with an aggressive outreach outreach and new merit-based hiring and recruitment program that sought and valued experience representing individuals in Immigration Court at least as much as government prosecutorial backgrounds. But, not so much. 

In particular, the BIA remains “well-packed” with Trump-era appointees, a number of whose appellate judicial credentials were questioned and criticized by immigration and human rights experts! No matter to Garland!

Even “gimmicks” like “dedicated dockets,” phantom, defective “Notices to Appear” (Master @ 9 AM Christmas AM, anyone?) designed to frustrate lawyers and produce in absentia removals, and ramming 80% of unaccompanied minors and others receiving removal orders through the system without lawyers haven’t stemmed the tides of systemic failure!

Truth is, only a distinct minority of recently completed cases resulted in removal or voluntary departure orders (24%). That, combined with the minuscule number of “new filings” that appear to meet the Administration’s highest priorities, criminal activity (0.51%) strongly suggests that the vast majority of pending cases, perhaps as many as 1 million, could be administratively closed, referred to USCIS, “fast-tracked” for relief, or otherwise taken off the docket without adverse effects to either party.

But, meaningful backlog reduction won’t happen with the current leadership and judicial composition at Garland’s EOIR. Inexplicably, Garland has chosen to keep the progressive “practical scholars and experts” with the vision, skills, and guts to address the backlog “on the sidelines.” See, e.g., “The Chen-Moskowitz Plan for Backlog Reduction,”  https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

Instead, Garland has chosen the “institutionalized mediocrity” and chronic mismanagement promoted by his Trumpy predecessors. 

Almost every day, I read articles from Democratic politicos and pundits about the dire need to reform the Federal Judiciary to counteract the corrosive effects of radical right judicial appointments engineered by McConnell and right-wing interest groups. See, e.g., this Ruth Marcus op-ed in WashPost,  https://www.washingtonpost.com/opinions/2021/11/28/supreme-court-decisions-abortion-guns-religious-freedom-loom/

But, despite such pontification, the fact is that the Dems and Garland have completely failed to reform and improve the quality of the one major court system they entirely “own” — the U.S. Immigration Courts. That makes speculation and debate about what could be done to reform and save the credibility of the Article III Courts nothing but feckless idle chatter!

While the DOJ has often pushed the “myth” that backlogs “benefit” immigrants, the truth is quite different. Insurmountable backlogs in Immigration Court, intertwined with Aimless Docket Reshuffling, deny due process to individuals, demoralize and penalize lawyers representing migrants (often serving pro bono or low bono), and cripple our overall justice system.

That’s a national tragedy of epic proportions, unfolding and worsening under Garland and the Dems, the reverberations of which will shake the very foundations of American democracy!

The Trumpsters successfully weaponized the Immigration Courts, without regard to law, institutional integrity, or outside protests and criticism! The Dems appear too timid, disinterested, discombobulated, and lacking in imagination and initiative to fix them while they have a chance! That’s not a good sign for American democracy!

🇺🇸Due Process Forever!

PWS

12-20-21

⚖️☹️ (NO) SURPRISE! — “GARLAND’S GIMMICKS” FAIL TO STEM GROWTH OF EOIR BACKLOG, NOW APPROACHING ASTOUNDING 1.5 MILLION! 🆘— “Bogus Dedicated Dockets,” Gross Abuse Of Title 42 To Deny Fair Hearings, Due Process Denying “Production Quotas,” “Trumped-Up Judiciary” Can’t Overcome Lack Of Dynamic Progressive Practical Leaders & Judges, As 98% Of New Filings Non-Criminal & Intake Outpaces Completions By 2.5 to 1! — Many Of Us Predicted This, & Offered Obvious Solutions — Why Are Garland, Mayorkas, & Other Biden Immigration Honchos “Asleep @ The Switch?”  😴 — Latest TRAC Report Damning For Garland’s Beyond Dysfunctional Courts! 

 

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

https://trac.syr.edu/whatsnew/email.211014.html

Number of New Deportation Cases Far Outpaces Completed Cases in FY 2021

(14 Oct 2021) According to TRAC’s updated Quick Facts tools, the number of new deportation cases filed with the Courts in FY 2021–over 315,000–is more than double the number of completed cases over the same period which, according to Immigration Court records, currently sits at less that 145,000. When incoming cases exceed the capacity of the Courts to adjudicate those cases, the Immigration Court backlog continues to grow. At the end of September 2021, the end of FY 2021, the total number of pending cases reached nearly 1.5 million total cases, larger than the population of San Diego, the eighth largest city in the United States.

The Transactional Research Access Clearinghouse (TRAC) a research organization at Syracuse University created ‘Quick Facts’ tools to provide a user-friendly way to see the most updated data available on immigrant detention and the Immigration Courts. The tools include easy-to-understand data in context and provide quotable descriptions.

Highlights from data updated today on immigrants facing deportation in court include the following:

  • Immigration Courts recorded receiving 315,491 new cases so far in FY 2021 as of September 2021. This compares with 144,654 cases that the court completed during this period.
  • According to court records, only 2.0% of FY 2021 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.
  • At the end of September 2021, 1,457,615 active cases were pending before the Immigration Court.
  • Los Angeles County, CA, has the most residents with pending Immigration Court deportation cases (as of the end of September 2021).
  • So far this fiscal year (through September 2021), immigration judges have issued removal and voluntary departure orders in 29.7% of completed cases, totaling 43,031 deportation orders.
  • So far in FY 2021 (through September 2021), immigrants from Mexico top list of nationalities with largest number ordered deported.
  • Only 20.6% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.
  • Immigration judges have held 22,712 bond hearings so far in FY 2021 (through September 2021). Of these 6,997 were granted bond.

For more information, see TRAC’s Quick Facts tools here or click here to learn more about TRAC’s entire suite of immigration tools.

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

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

Being able to say “toldya so” to the crowd in the Biden Administration is of little consolation to those of us in the Round Table of Former Immigraton Judges ⚔️🛡and the NDPA who have had to witness the unfolding (yet preventable) human disasters caused by the Biden Administration’s inept, tone-deaf, frankly spineless approach to EOIR and the rest of the dysfunctional USG immigration bureaucracy! 

An operationally independent EOIR under dynamic progressive leadership and a BIA of judges who are practical experts in asylum and immigration could have cut the backlog by eliminating non- priority cases (most of what is in the EOIR backlog) and showing that fair, legal, timely, and generous administration of asylum laws can work and produce efficient, yet humane, correct, and consistent results!

Instead, the disgraceful mess at EOIR promotes human suffering and dysfunction, waste, and abuse in government. Backlog building “Aimless Docket Reshuffling,” (“ADR”), continuing to move cases around to meet administrative objectives unrelated to the needs of the parties and the input of the sitting Immigration Judges, continues to plague Garland’s failed courts.

Indeed, if Garland’s EOIR were a country, it would be considered a “failed state!”

A reformed EOIR also could have exposed and perhaps corrected some of the continuing systemic abuses at DHS (see, e.g., “Baby Jails,” “Family Gulags,” and absurdly inconsistent and irrational bond procedures)!

🇺🇸 Due Process Forever!

PWS

10-19-21

🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!

Dan Kowalski reports for LexisNexis Immigration Community:

 https://www.ca5.uscourts.gov/opinions/pub/19/19-60807-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-cat-remand-abushagif-v-garland#

Abushagif v. Garland

“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”

[Hats off to pro bono publico counsel Alison Caditz and Jeri Leigh Miller!]

pastedGraphic.png pastedGraphic_1.png

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.

“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”

The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.

Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!

Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:

While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal

Country Reports on Human Rights Practices for 2020

United States Department of State • Bureau of Democracy, Human Rights and Labor

LIBYA 7

facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.

Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.

Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist! 

One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!

How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!

Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!

Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!

The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.  

This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.

Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place. 

This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts of  pro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!

Torture
Garland indifferent to wrong torture decisions from BIA?
Photo by David R. Badger, Creative Commons

I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).

Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, and many public speaking, writing, and other public information and educational functions. 

While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.

It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!

Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮

🇺🇸Due Process Forever!

PWS

09-26-21

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

 

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

pastedGraphic.png

Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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

You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the  Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control. 

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of  American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

😎👍YES! IN A HUGE WIN FOR DUE PROCESS, EFFICIENCY, JUDICIAL INDEPENDENCE, & SANE GOVERNMENT, AG GARLAND OVERRULES SESSIONS’S IDIOTIC MATTER OF CASTRO-TUM PRECEDENT & RESTORES IJs’ AUTHORITY TO ADMINISTRATIVELY CLOSE CASES  — Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

Judge Merrick Garland
Atorney General Merrick B. Garland
Official White House Photo
Public Realm

 

The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).

(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.

(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).

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

Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.

Hats 🎩 off to Judge Garland for doing the right thing (even if it did take longer than some of us thought it should)! This also ties in perfectly with the recent common sense restoration of enforcement priorities and prosecutorial discretion at ICE by OPLA head John Trasvina! https://immigrationcourtside.com/category/department-of-homeland-security/immigration-customs-enforcement-ice/office-of-principal-legal-adviser-opla/john-d-trasvina/

After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Along those same lines, “Sir Jeffrey” Chase reports some more good news:

More Good News!

Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.

It took far too long, but justice prevailed.

Best, Jeff

That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”

It’s a telling commentary that finally getting the law back to where it was in 2016, “pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!

🇺🇸Due Process Forever!

PWS

07-15-21

TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS!  — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’” 

John D. Trasvina
John D. Trasvina
Principal Legal Adviser
ICE — Finally, some common sense, practical scholarship, leadership, and “good government” from someone in the Biden Administration’s Senior Immigration Team! Not surprisingly, it’s from one of the few who has actually “walked the walk” on the relationship between racial justice and immigrants’ rights. He appears to be the “right person” for ICE. Would he have been a better choice to clean up the mess at DOJ?
PHOTO: Wikipedia

 

https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf

   MEMORANDUM FOR: FROM:

SUBJECT:

May 27, 2021 All OPLA Attorneys

John D. Trasvifia Principal Legal Advisor

JOHN D TRASVINA

DigitallysignedbyJOHN0 TRASVINA

Date:2021.05.27 07:04:19 -07’00’

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

On January 20, 2021, President Biden issued Executive Order (EO) 13993, Revision ofCivil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051 (Jan. 20, 2021), which articulated foundational values and priorities for the Administration with respect to the enforcement of the civil immigration laws. On the same day, then-Acting Secretary ofHomeland Security David Pekoske issued a memorandum titled, Review o fand Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Interim Memorandum).

The Interim Memorandum did four things. First, it directed a comprehensive Department of Homeland Security (DHS or Department)-wide review of civil immigration enforcement policies. Second, it established interim civil immigration enforcement priorities for the Department. Third, it instituted a 100-day pause on certain removals pending the review. Fourth, it rescinded several existing policy memoranda, including a prior U.S. Immigration and Customs Enforcement (ICE) Office ofthe Principal Legal Advisor (OPLA) memorandum, as inconsistent with EO 13993.2 The Interim Memorandum further directed that ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

On February 18, 2021, ICE Acting Director Tae D. Johnson issued ICE Directive No. 11090.1,

1

On January 26, 2021, a federal district court issued a temporary restraining order (TRO) enjoining DHS and its components from enforcing and implementing Section C ofthe interim Memorandum titled, Immediate JOO-Day Pause on Removals. See Texas v. United States, — F. Supp. 3d —, 2021 WL 247877 (S.D. Tex. 2021); see also Texas v. United States, 2021 WL 411441 (S.D. Tex. Feb. 8, 2021) (extending TRO to February 23, 2021). On February 23, 2021 , the district court issued an order preliminarily enjoining DHS from “enforcing and implementing the policies described in … Section C.” Texas v. United States, 2021 WL 723856 (S.D. Tex. Feb. 23, 2021). In light of the expiration of the 100-day period described in Section C, that case has been dismissed as moot. Similarly, in light ofthe preliminary injunction, and the fact that the 100-day period described in the Interim Memorandum has now expired, this interim OPLA guidance does not implement Section C of the Interim Memorandum.

2 The Interim Memorandum revoked, as inconsistent with EO 13993, the memorandum from former Principal Legal Advisor Tracy Short, Guidance to OPLA Attorneys Regarding the Implementation ofthe President’s Executive Orders and the Secretary’s Directives on Immigration Enforcement (Aug. 15, 2017). OPLA attorneys should no longer apply that prior guidance.

FOR OFFICIAL USE ONLY

Office o fthe Principal Legal Advisor

U.S. Department of Homeland Security 500 12th Street, SW

Washington, DC 20536

U.S. Immigration

and Customs Enforcement

www.1ce.gov

1

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 2 of 13

Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Johnson Memorandum). And, on May 27, 2021, Acting General Counsel Joseph B. Maher issued a memorandum titled, Implementing Interim Civil Immigration Enforcement Policies and Priorities (Maher Memorandum). In accordance with these memoranda, and pending the outcome of the Secretary’s review and any resulting policy guidance, I am providing this additional interim direction to OPLA attorneys to guide them in appropriately executing the Department’s and ICE’s interim enforcement and removal priorities and exercising prosecutorial discretion.

Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise ofprosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department’s mission of administering and enforcing the immigration laws ofthe United States in a smart and sensible way that promotes public confidence. In performing their duties, including through implementation ofthis memorandum, OPLA attorneys should remain mindful that “[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.” 3 As a result, they are both authorized by law and expected to exercise discretion in accordance with the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and in this guidance at all stages of the enforcement process and at the earliest moment practicable in order to best conserve prosecutorial resources and in recognition o f the important interests at stake.

I. Enforcement and Removal Priority Cases

The Johnson Memorandum identifies three categories of cases that are presumed to be enforcement and removal priorities for ICE personnel. Subject to preapproval from supervisory personnel, other civil immigration enforcement or removal actions also may be deemed priorities. OPLA attorneys assigned to handle exclusion, deportation, and removal proceedings are directed to prioritize agency resources consistent with those presumed priorities and other matters approved as priorities under the Johnson Memorandum or by their Chief Counsel. The presumed priority categories are:

1. NationalSecurity.Noncitizens.4 whohaveengagedinoraresuspectedof

3 Matter ofS-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en bane). In remarks delivered at the Second Annual Conference of United States Attorneys more than 80 years ago, Attorney General Robert H. Jackson said, “[n]othing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are ofsuch independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just Although the government technically loses its case, it has really won ifjustice has been done.” Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUD. Soc’Y 18, 18-19 (1940).

4 Consistent with ICE guidance, this memorandum uses the word “noncitizen” to refer to individuals described in section 10l(a)(3) ofthe Immigration and Nationality Act (INA). See Memorandum from Tae Johnson, ICE Acting Director, Updated Terminologyfor Communications and Materials (Apr. 19, 2021). OPLA attorneys should familiarize themselves with this ICE guidance and use the appropriate terminology set forth therein when engaged in outreach efforts, drafting internal documents, and communicating with stakeholders, partners, and the general

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ten-orism or espionage or terrorism-related or espionage-related activities, or whose apprehension, arrest, or custody, is otherwise necessary to protect the national security ofthe United States..5

2. Border Security. Noncitizens who were apprehended at the border or a port ofentry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.

3. Public Safety. Noncitizens who have been convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act (INA), or who have been convicted ofan offense for which an element was active pa1ticipation in a criminal street gang, as defined in

18 U.S.C. § 52 l(a), or who are not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity ofthe gang or transnational criminal organization; and are determined to pose a threat to public safety.6

Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement or removal action against any individual noncitizen. Rather, OPLA attorneys are expected to exercise their discretion thoughtfully, consistent with ICE’s important national security, border security, and public safety mission. Civil immigration enforcement and removal efforts involving a noncitizen whose case fits within the three areas just listed are presumed to be a justified allocation ofICE’s limited resources. Enforcement and removal efforts may also be

justified in other cases, under appropriate circumstances. 7 Prioritization of finite agency

public. Formal legal terminology (e.g., “alien,” “alienage”) should continue to be used by OPLA attorneys when appearing before judicial and quasi-judicial tribunals, and when quoting or citing to sources of legal authority or other official documents like immigration forms.

5 For purposes of the national security presumed enforcement priority, the tenns “terrorism or espionage” and “terrorism-related or espionage-related activities” should be applied consistent with (I) the definitions of”terrorist activity” and “engage in terrorist activity” in section 212(a)(3)(B)(iii)-(iv) of the INA, and (2) the manner in which the term “espionage” is generally applied in the immigration laws. In evaluating whether a noncitizen’s “apprehension, arrest, and/or custody, or removal is otherwise necessary to protect” national security, officers and agents should determine whether a noncitizen poses a threat to United States sovereignty, territorial integrity, national interests, or institutions. General criminal activity does not amount to a national security threat.

6 In evaluating whether a noncitizen currently “pose[s] a threat to public safety,” consideration should be given to the extensiveness, seriousness, and recency ofthe criminal activity, as well as to mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available. See Johnson Memorandum at 5.

7 As reflected in the Johnson Memorandum, Field Office Director (FOD) or Special Agent in Charge (SAC) approval is generally required in advance ofcivil immigration enforcement or removal actions taken by ICE officers and agents in cases other than presumed priority cases. Where exigent circumstances and public safety concerns make it impracticable to obtain pre-approval for an at-large enforcement action (e.g., where a noncitizen poses an imminent threat to life or an imminent substantial threat to property), approval should be requested within 24 hours following the action. See Johnson Memorandum at 6.

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resources is a consideration in all civil immigration enforcement and removal decisions, including but not limited to the following:

• Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;

• Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);

• Deciding whether to focus resources only on administrative violations or conduct;

• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;

• Deciding whether to detain or release from custody subject to conditions or on the individual’s own recognizance;

• Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute through stipulation, or pursue appeal in removal proceedings;

• Deciding when and under what circumstances to execute final orders of removal; and

• Deciding whether to grant defe1Ted action or parole.

This non-exhaustive list ofcivil immigration enforcement and removal decisions identifies opportunities at every stage ofthe process to ensure the most just, fair, and legally appropriate outcome, whether that outcome is a grant of relief, an order of removal, or an exercise of discretion that allows the noncitizen to pursue immigration benefits outside the context of removal proceedings. This memorandum provides interim guidance regarding the following enforcement decisions within OPLA’s purview: filing or canceling an NTA; moving to administratively close or continue proceedings; moving to dismiss proceedings; pursuing appeal;

joining in a motion to grant reliefor to reopen or remand removal proceedings and entering stipulations; and taking a position in bond proceedings, as discussed below..8 While discretion may be exercised at any stage of the process and changed circumstances for an individual denied prosecutorial discretion at one stage may warrant reconsideration at a later stage, discretion generally should be exercised at the earliest point possible, once relevant facts have been established to properly inform the decision.

8 While resources should be allocated to the presumed priorities enumerated above, “nothing in [the Interim M]emorandum prohibits the apprehension or detention ofindividuals unlawfully in the United States who are not identified as priorities herein.” Interim Memorandum at 3. See also Johnson Memorandum at 3 (“[J]t is vitally important to note that the interim priorities do not require or prohibit the atTest, detention, or removal ofany noncitizen.”); Maher Memorandum at 3 (“Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement action against an individual noncitizen.”). OPLA may dedicate its resources to pursuing enforcement action against a noncitizen who does not fall into one of the presumed enforcement priorities where the FOD or SAC has approved taking enforcement action in the case, where the NTA-issuing agency has exercised its own discretion to prioritize the noncitizen for enforcement under the Interim Memorandum, or where the ChiefCounsel, in their discretion, decides that OPLA resources should be committed to the case.

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This memorandum is intended to provide guidance pending completion ofthe DHS-wide comprehensive review of civil immigration enforcement and removal policies and practices contemplated in the Interim Memorandum. To that end, additional guidance will be fo1thcoming.

II. Prosecutorial Discretion

OPLA will continue to fulfill its statutory responsibility as DHS’s representative before the Executive Office for Immigration Review (EOIR) with respect to exclusion, deportation, and removal proceedings. See 6 U.S.C. § 252(c). In that capacity, prosecutorial discretion plays an important role in OPLA’s enforcement decision making. The following general guidance on prosecutorial discretion should inform how OPLA attorneys apply the enforcement priorities of DHS and ICE.

OPLA attorneys may exercise prosecutorial discretion in proceedings before EOIR, subject to direction from their chain ofcommand and applicable guidance from DHS. In exercising such discretion, OPLA attorneys will adhere to the enduring principles that apply to all o f their activities: upholding the rule oflaw; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment and doing justice in individual cases, consistent with DHS and ICE priorities.

Prosecutorial discretion is the longstanding authority o f an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. In the context of OPLA’s role in the administration and enforcement of the immigration laws, prosecutorial discretion arises at different stages of the removal process, takes different forms, and applies to a variety ofdeterminations. As the Supreme Court explained more than two decades ago when discussing the removal process, “[a]t each stage the Executive has discretion to abandon the endeavor . . . .”.9

OPLA’s policy is to exercise prosecutorial discretion in a manner that furthers the security ofthe United States and the faithful and just execution ofthe immigration laws, consistent with DHS’s and ICE’s enforcement and removal priorities. While prosecutorial discretion is not a formal program or benefit offered by OPLA, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with this guidance. Among other decisions, the exercise of discretion also generally includes whether to assign an attorney to represent the department in a particular case. See 8 C.F.R. § 1240.2(b) (creating expectation that DHS will assign counsel to cases involving mental competency, noncitizen minors, and contested removability, but that otherwise, “in his or her discretion, whenever he or she deems such assignment necessary or advantageous, the General Counsel may assign a [DHS] attorney to any other case at any stage of the proceeding”) (emphasis added). OPLA Chief Counsel are permitted to exercise this discretion on my behalf, in appropriate consultation with their chain of command.

In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen’s length

9 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 47 1, 483-84 ( 1999). FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 6 of 13

of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances ofarrival in the United States and the manner oftheir entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion ofother noncitizens depending on the totality ofthe circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver ofa seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness ofprior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency ofthe criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length ofsentence imposed and served, ifany; the age ofthe noncitizen at the time the crime was committed; the length oftime since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality ofthe circumstances.

Requests for prosecutorial discretion may be made in accordance with the instructions provided in Section IX of this guidance. Where a request for prosecutorial discretion is made, the OPLA attorney handling the case must document that request in PLAnet, identifying the requester and the substance of the request and uploading any supporting documentation consistent with standard operating procedures (SOPs). 10 Based on my experience working with you over the past few months, I believe strongly in the professionalism, legal skill, and judgment of OPLA’s attorneys, working through their supervisors to advise our clients and manage an enormous workload with limited resources. I trust and expect that all OPLA field attorneys, under the leadership ofourChiefCounsel, will work strenuously to ensure the timely and appropriate exercise ofdiscretion in meritorious removal cases. That being said, given the tremendous importance of achieving just and correct outcomes on these issues, it is entirely pe1missible for any OPLA attorney to raise prosecutorial discretion decisions through their chain ofcommand to OPLA headquaiters (HQ) for additional review or discussion.

Appropriate exercises ofprosecutorial discretion are in the mutual interest of both the person benefitting from the exercise ofdiscretion and the government itself. This mutual interest is no less significant because a noncitizen does not affirmatively request prosecutorial discretion. In the absence of an affirmative request for prosecutorial discretion by a noncitizen or a noncitizen’s representative, OPLA attorneys should nonetheless examine the cases to which they are assigned to determine independently whether a favorable exercise ofdiscretion may be

10 If the case involves classified information, the OPLA attorney must transmit such information only in accordance with the DHS Office ofthe ChiefSecurity Officer Publication, Safeguarding Classified & Sensitive But Unclassified Information Reference Pamphlet (Feb. 2012, or as updated), and all other applicable policies governing the handling ofclassified information.

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appropriate. This affirmative duty to evaluate assigned cases is central to an OPLA attorney’s job. Chief Counsel should include in their local SOPs ways to address these cases including how

OPLA attorneys should document their affirmative consideration ofprosecutorial discretion in PLAnet.

III. Notices to Appear

When a legally sufficient, appropriately documented NTA has been issued by a DHS component consistent with the component’s issuing and enforcement guidelines, 11 it will generally be filed with the immigration court and proceedings litigated to completion unless the Chief Counsel exercises prosecutorial discretion based on their assessment of the case. 12 As prosecutorial discretion is expected to be exercised at all stages of the enforcement process and at the earliest moment practicable, it may be appropriate for the Chief Counsel to conclude that a legally

sufficient, a ro riatel documented administrative immi ration case warrants non-filin of an

NTA_ (b)(S) (b)(5)

(b)(S) Where an NTA is issued but not filed with the immigration court pursuant to this section, OPLA should document the reasoning for this position in PLAnet and the OPLA Field Location should work with its local Enforcement and Removal Operations (ERO) Field Office to cancel the NTA and inform the noncitizen of the cancellation. 13

IV. Administrative Closure and Continuance of Proceedings

In the past, OPLA had broad authority to exercise prosecutorial discretion by agreeing to

administrative closure of cases by EOIR. However, due to conflicting court of appeals decisions

11 This includes NTAs submitted to OPLA by ICE operational components as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) for review. “Appropriately documented” in this context means that, in OPLA’s litigation judgment, sufficient information has been provided by the NTA-issuing component to carry any DHS burden of proof. See INA§ 240(c), 8 C.F.R. § 1240.8.

12 Separate and apart from the enforcement priority framework outlined in the Interim Memorandum and Johnson Memorandum, certain noncitizens have an established right to be placed into removal proceedings. See, e.g., 8 C.F.R. §§ 208. l4(c)(l) (requiring referral for removal proceedings ofa removable noncitizen whose affirmative asylum application is not granted by USCIS); 216.4(d)(2) (requiring NTA issuance to noncitizen whose joint petition to remove conditional basis ofLPR status is denied by USCIS); 216.S(f) (same; USCIS denial ofapplication for waiver of the joint petition requirement). In other cases, USCIS may issue an NTA on a discretionary basis to a noncitizen who wishes to pursue immigration benefits before the immigration court. Although such cases do not fall within the priority framework, absent an affirmative request by the noncitizen prior to the merits hearing for the favorable exercise of prosecutorial discretion to dismiss removal proceedings, OPLA attorneys should generally litigate them to completion. If such noncitizens are ordered removed, requests for prosecutorial discretion would then most properly be made to ERO for evaluation in accordance with the Department’s and ICE’s stated priorities.

13 The NTA cancellation regulation vests immigration officers who have the authority to issue NTAs with the authority to also cancel them. 8 C.F.R. § 239.2(a). The regulation expresses a preference for certain NTAs to be cancelled by the same officer who issued them “unless it is impracticable” to do so. Id. § 239.2(b). Given the enormous size ofthe EOIR docket, current OPLA staffing levels, and complexities associated with routing any significant number ofNTAs back to specific issuing officers stationed around the country, it would be impracticable to require OPLA attorneys to do so. By contrast, the local ERO Field Offices with which OPLA Field Locations routinely interact are well suited to assist with this function promptly and efficiently.

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on the validity ofMatter ofCastro-Tum, 27 I&N Dec. 271 (A.G. 2018) (limiting administrative closure by EOIR adjudicators to circumstances where a previous regulation or judicially approved settlement expressly authorizes such an action), the availability ofadministrative closure as a form ofprosecutorial discretion for ICE and a tool ofdocket management for EOIR is limited in certain jurisdictions for certain types of cases. 14 Nevertheless, OPLA retains authority to handle pending cases on EOIR’s docket by deciding whether to agree to a continuance for “good cause shown” under 8 C.F.R. § 1003.29, see also Matter ofL-A-B-R-, I&N Dec. 405 (A.G. 2018) (interpreting this regulation), and whether to seek, oppose, or join in a motion for dismissal of proceedings pursuant to 8 C.F.R. § 1239.2(c).

The presumed priorities outlined above will be a significant factor informing the position that OPLA attorneys take in response to continuance motions made by noncitizens in removal proceedings. Indeed, given the comprehensive review of immigration enforcement and removal policies and practices directed by Section A ofthe Interim Memorandum, OPLA attorneys are authorized to take the general position that “good cause” exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review. 15 Continuing cases in these circumstances may conserve OPLA resources in cases where the ultimate arrest, detention, and removal of a noncitizen are unlikely. Accordingly, while immigration judges (Us) will make case-by-case assessments whether continuance motions are supported by “good cause shown” under 8 C.F.R. § 1003.29, and OPLA attorneys should assess each continuance motion on its own terms, in the absence ofserious aggravating factors, the fact that a noncitizen is not a presumed priority should weigh heavily in favor of not opposing the noncitizen’s motion. Before opposing a continuance in such cases, OPLA attorneys should confer with their supervisors. The reason for opposing the motion should also be documented in PLAnet.

V. Dismissal of Proceedings

With approximately 1.3 million cases on the immigration courts’ dockets nationwide, and the varied procedural postures of such cases, including many set for future merits hearings on re.lief or protection from removal, OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal ofproceedings consistent with its limited resources and DHS and ICE guidance. The size ofthe court backlog and extraordinary delays in completing cases impede the interests ofjustice for both the government and respondents alike and underminepublicconfidenceinthis importantpillaroftheadministrationofthenation’s

14 Compare Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) (agreeing with Castro-Tum), with Arcos Sanchez, 2021 WL I774965, — F.3d — (3d Cir. 2021) (rejecting Castro-Tum and finding that EOIR regulations giving broad case management authority to its adjudicators includes administrative closure authority), Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (Coney Barrett, J.) (same), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). Notwithstanding this variation in circuit law, administrative closure remains available under Castro-Tum for T and V nonimmigrant visa applicants. See 8 C.F.R. §§ I214.2(a) (expressly allowing for administrative closure for noncitizens seeking to apply for T nonimmigrant status), 1214.3 (same; V nonimmigrant status).

15 This does not imply that “good cause” cannot exist in cases ofnoncitizens who fall into the presumed priority categories or are otherwise a civil immigration enforcement or removal priority. OPLA attorneys retain discretion to, as appropriate, agree to continuances in such cases.

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immigration laws. In advance of future guidance, cases that generally will merit dismissal in the absence of serious aggravating factors include:

I. MilitaryServiceMembersorImmediateRelativesThereof16

A favorable exercise of prosecutorial discretion (i.e., concurrence with or non-opposition to a motion for dismissal ofproceedings without prejudice) generally will be appropriate if a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Anned Forces or National Guard, particularly if the individual may qualify for U.S. citizenship under sections 328 or 329 ofthe I N A . _1 1

2. Individuals Likely to be Granted Temporary or Permanent Relief

When a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or pennanent relief, it generally will be appropriate to move to dismiss such proceedings without prejudice so that the noncitizen can pursue that relief before the appropriate adjudicatory body. 18 This may be appropriate where, for instance, the noncitizen is the beneficiary of an approved Form 1-130, Petition for Alien Relative, and appears prima facie eligible for either adjustment of status under INA section 245 or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence under 8 C.F.R. § 212.7(e), immediately or in the near future; appears prima facie eligible to register for Temporary Protected Status (TPS);.19 or is a child who appears prima facie eligible to pursue special immigrant juvenile status under INA section 101(a)(27) and 8 C.F.R. § 204.11. In such a circumstance, the exercise of prosecutorial discretion itselfcan help to promote the integrity ofour immigration system by enhancing the ability of certain noncitizens to come into compliance with our immigration laws.

3. Compelling Humanitarian Factors

The favorable exercise ofprosecutorial discretion- including agreeing to dismissal of proceedings without prejudice-generally will be appropriate when compelling humanitarian factors become apparent during NTA review or litigation of the case. While some factors will weigh more heavily than others, this can include cases where, for instance, the noncitizen has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an

16 See Email from Kenneth Padilla, DPLA, Field Legal Operations, to all OPLA attorneys, Refresher Guidance Regarding United States Veterans and Military Service Members in Removal (Nov. 18, 2019).

17

citizenship. See ICE Directive 16001 .2, Investigating the Potential U S. Citizenship o fIndividuals Encountered by

Relatedly, OPLA attorneys must continue to follow ICE guidance related to the evaluation of claims to U.S. ICE (Nov. 10, 2015).

18 DHS regulations expressly contemplate joint motions to tenninate removal proceedings in appropriate cases in which the noncitizen is seeking to apply for U nonimmigrant status. See 8 C.F.R. § 214.14(c)(I)(i).

19 Stipulation to TPS in such cases may also be an option, in the exercise ofdiscretion. Cf Matter ofD-A-C-, 27 I & N . D e c . 5 7 5 ( B I A 2 0 I 9 ) ( d i s c u s s i n g d i s c r e t i o n a r y a u t h o r i t y o f I J s t o g r a n t T P S ) ; S e c t i o n V I I , i n fr a .

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immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim ofdomestic violence, human trafficking, or other serious crime;.20 came to the United States as a young child and has since lived in the United States continuously; or is party to significant collateral civil litigation (e.g., family court proceedings, non-frivolous civil rights or labor claims).

4. Significant Law Enforcement or Other Governmental Interest

Where a noncitizen is a cooperating witness or confidential informant or is otherwise significantly assisting state or federal law enforcement, it may be appropriate in certain cases to agree to the dismissal ofproceedings without prejudice. “Law enforcement” in this context includes not only conventional criminal law enforcement, but also enforcement of labor and civil rights laws. In exercising discretion related to law enforcement equities, OPLA attorneys should be guided by the perspectives of the relevant investigating agency components (e.g., the Office ofInspector General, Office for Civil Rights and Civil Libe1ties, Depa1tmentofJustice Immigrant and Employee Rights Section, Department of Labor, National Labor Relations Board, Equal Employment Opportunity Commission, other federal agencies, ERO, Homeland Security Investigations, and any relevant state counterparts). Additionally, such law enforcement entities may have tools at their disposal that OPLA does not, including stays of removal, deferred action, T and U nonimmigrant status law enforcement certification, and requests for S nonimmigrant classification. In any event, national security, border security, and public safety are paramount in deciding whether to continue litigating removal proceedings.

5. Long-TermLawfulPermanentResidents

A favorable exercise of prosecutorial discretion should also be considered for LPRs who have resided in the United States for many years, paiticularly when they acquired their LPR status at a young age and have demonstrated close family and community ties. Dismissal ofsuch cases that do not present serious aggravating factors will allow the noncitizen to maintain a lawful immigration status and conserve finite government resources.

When OPLA agrees to dismissal of removal proceedings as an exercise ofprosecutorial discretion in the categories above, the reasoning for this position should be recorded in PLAnet.

VI. Pursuing Appeal

In our immigration system, DHS initiates removal proceedings while IJs and the Board of Immigration Appeals (BIA) exercise the Attorney General’s delegated authority to adjudicate issues ofremovability and reliefand protection from removal. OPLA attorneys continue to possess the discretion to take legally viable appeals ofIJ decisions and make appropriate legal arguments in response to noncitizen appeals and motions..2 1 Appellate advocacy should generally

20 See generally ICE Directive No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17,2011).

21 OPLAheadquartersdivisionsshouldcontinuetocoordinatewithimpactedDHSOfficeoftheGeneralCounsel (OGC) headquarters and component counsel offices when preparing briefs and motions in significant litigation.

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focus on priority cases- national security, border security, and public safety. Of course, other considerations, such as significant aggravating and mitigating factors and the need to seek clarity on an important legal issue, are appropriate for OPLA attorneys to take into account, consistent with direction from their respective Chief Counsel.

Consistent with any local guidance issued by their respective Chief Counsel,.22 OPLA attorneys may waive appeal in a case that is not a priority. OPLA attorneys may also decline to appeal where there is little likelihood ofsuccess before the BIA. While OPLA attorneys may reserve appeal to ensure the articulation ofa fully reasoned decision by an IJ to help inform whether the appeal should ultimately be perfected, OPLA attorneys may also waive appeal, where appropriate, in the interest ofjudicial efficiency and in recognition of limited resources.

OPLA Field Locations generally coordinate appellate advocacy before the BIA with the Immigration Law and Practice Division (ILPD)..23 OPLA Field Locations and ILPD should continue to work together, along with any other relevant OPLA HQ divisions, to craft strong and nationally consistent appellate work product. Again, in committing OPLA resources to perfecting appeal and drafting appellate pleadings, Field Locations and ILPD should focus their efforts on presumed priority cases. Furthermore, to ensure efficiency in litigation, OPLA attorneys should generally limit briefing schedule extension requests before the BIA and should not request briefing extensions in detained matters without prior approval from a supervisor. However, it is permissible to agree to briefing extension requests filed by non-detained noncitizens whose cases are not presumed priorities.

VII. Joining in Motions for Relief and Motions to Reopen and Entering Stipulations

In order to conserve resources and expedite resolution of a case- as well as where doing so would fulfill the duty to do justice and achieve the best outcome- OPLA attorneys have the discretion to join motions for relief (oral or written), consistent with any local guidance issued by their respective Chief Counsel. An OPLA attorney should be satisfied that the noncitizen qualifies for the reliefsought under law and merits reliefas a matter ofdiscretion or qualifies

22 ChiefCounsel should review existing local practice guidance to ensure that it confonns to current interim enforcement priorities and amend such guidance where necessary. Similarly, any new local practice guidance should conform to this memorandum and the presumed priorities.

23 See Gwendolyn Keyes Fleming, Promoting Excellence in OPLA ‘s Advocacy Before the Board o fimmigration Appeals (Feb. 22, 2016); Email Message from Kenneth Padilla and Adam Loiacono, Final Rule – Appella..t.,e,,.,..,,,,._ _,

Procedures and Decisional Finality in Immif!ration Proceedinf!s; Administrative Closure (Jan. 22, 2021).l(b)(S) b)(S)

(b)(S) IFurther, special procedures apply in the context ofnational security and human rights violator cases. See Email Message from Rjah Ramlogan, OPLA Supplemental Guidance on the Proper Handling ofNational Security and Human Rights Violator Cases (May 28, 2015), as supplemented and modified by OPLA Memorandum, Proper Handling o f OPLA National Security (NS) Cases (May 21, 2015) and OPLA Memorandum, Proper Handling ofOPLA Human Rights Violator (HRV) Cases (May 2I, 20I5).

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24

under law for protection from removal when agreeing to such motions.. Such decisions to join

in motions should be made in a manner that facilitates the efficient operation ofOPLA Field Locations in immigration court. The same applies with respect to narrowing disputed issues through stipulation in order to promote fair and efficient proceedings.

OPLA intends to address in future.guidance when to join in motions to reopen cases with final removal orders. In the meantime, OPLA should continue addressing requests for joint motions to reopen on a case-by-case basis, giving favorable consideration to cases that are not priorities and where dismissal would be considered under Section V, supra.

VIII. Bond Proceedings

OPLA attorneys appearing before EOIR in bond proceedings must follow binding federal and administrative case law regarding the standards for custody redeterminations. 25 OPLA attorneys should also make appropriate legal and factual arguments to ensure that DHS’s interests, enforcement priorities, and custody authority are defended. In particular, in bond proceedings OPLA attorneys should give due regard to custody determinations made by an authorized immigration officer pursuant to 8 C.F.R. § 236. l(c)(8), while not relinquishing the OPLA attorney’s own responsibility to consider and appropriately apply the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and this guidance. Where a noncitizen produces new information that credibly mitigates flight risk or danger concerns, OPLA attorneys have discretion to agree or stipulate to a bond amount or other conditions of release with a noncitizen or their representative, and to waive appeal of an IJ’s order redetermining the conditions ofrelease in such cases..26

24 See, e.g., INA §§ 208 (asylum), 240A(a) (cancellation of removal for certain pennanent residents), 240A(b) (cancellation of removal and adjustment of status for certain nonpermanent residents), 240B (voluntary departure), 245 (adjustment ofstatus), 249 (registry). Additionally, OPLA attorneys represent DHS in cases where noncitizens apply for withholding of removal under INA section 241(b)(3) and protection under the regulations implementing U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See, e.g. , 8 C.F.R. §§ 1208.16-.18. Withholding and CAT protection both impose significant burdens ofproof(i.e., qualifying mistreatment must be “more likely than not” to occur). When a noncitizen moves to reopen their proceedings to pursue such non-discretionary protection, and the motion is supported by evidence that strongly suggests the noncitizen will be able to meet their burden, OPLA attorneys should ordinarily not oppose reopening and can also consider joining in such motions, as resources permit

25 See, e.g., Matter ofR-A-V-P-, 27 l&N Dec. 803, 804-05 (BIA 2020) (assessing whether respondent had met burden to demonstrate that he did not pose a risk of flight in INA section 236(a) discretionary detention case); Matter ofSiniausl«is, 27 I&N Dec. 207 (BIA 2018) (addressing interplay between flight risk and dangerousness considerations in INA section 236(a) discretionary detention case involving recidivist drunk driver); Matter of Kotliar, 24 l&N Dec. 124 (BIA 2007) (discussing general parameters of INA section 236(c) mandatory detention).

26 DHS and EOIR regulations recognize that, as a prerequisite for even being considered for discretionary release by an ICE officer under INA section 236(a), a noncitizen “must demonstrate to the satisfaction ofthe officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8), 1236.l(c)(S) (emphasis added). Additionally, prior to agreeing to non­ monetary conditions of release, OPLA attorneys should consult with their local ERO Field Offices to ensure that such conditions are practicable (e.g., GPS monitoring, travel restrictions).

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IJ custody redetermination decisions that are factually or legally erroneous are subject to appeal to the BIA. Decisions on whether to appeal or to continue to prosecute an appeal should be guided by the presumed priorities and the sound use of finite resources. See Section VI, supra. It may also be appropriate for an OPLA Field Location to seek a discretionary or automatic stay under 8 C.F.R. § 1003.l 9(i) in conjunction with a DHS bond appeal, particularly where issues of public safety are implicated. OPLA Field Locations should work closely with ILPD and other relevant OPLA HQ divisions to identify instances where use ofthis authority may be warranted..27

IX. Responding to Inquiries

Each OPLA Field Location should maintain email inboxes dedicated to receiving inquiries related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use ofthese mailboxes with their respective local immigration bars including non-governmental organizations assisting or representing noncitizens before EOIR. OPLA Field Locations and sub-offices should strive to be as responsive to such inquiries as resources permit.

X. Oversight and Monitoring

This memorandum serves as interim guidance, and OPLA’s experience operating under this guidance will inform the development of subsequent guidance aligning with the outcome of the comprehensive review directed by the Interim Memorandum. It is therefore critical that prosecutorial discretion decision-making information be promptly and accurately documented in PLAnet and that SOPs be implemented to ensure consistent PLAnet recordkeeping. Field Legal Operations (FLO) should issue such SOPs within two weeks ofthis memorandum. FLO’s regular review ofPLAnet and the SOPs will form the basis ofrecommendations on process improvements, if and as necessary.

Official Use Disclaimer

This memorandum, which may contain legally privileged information, is intended For Official Use Only. It is intended solely to provide internal direction to OPLA attorneys and staff regarding the implementation of Executive Orders and DHS guidance. It is not intended to, does not, and may not be relied upon to create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any individual or other party, including in removal proceedings or other litigation involving DHS, ICE, or the United States, or in any other form or manner whatsoever. Likewise, this guidance does not and is not intended to place any limitations on DHS’s otherwise lawful enforcement of the immigration laws or DHS’s litigation

prerogatives.

27 Existing OPLA guidance on automatic and discretionary stays remains in effect. See, e.g., Barry O’Melinn, Revised Proceduresfor Automatic Stay ofCustody Decisions by Immigration Judges (Oct. 26, 2006).

FOR OFFICIAL USE ONLY

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https://www.opn.ca6.uscourts.gov/opinions.pdf/

21a0127p-06.pdf

Garcia-DeLeon v. Garland, 6th Cir., 06-11-21, published

PANEL: MOORE, CLAY, and STRANCH, Circuit Judges.

KEY QUOTE:

Here, we squarely confront this question and conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), provides IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.

Permitting administrative closure for the limited purpose of allowing noncitizens to apply for provisional unlawful presence waivers pursuant to 8 C.F.R. § 212.7(e)(4)(iii) will not lead to non-adjudication of immigration cases. Thus, the concern raised in Hernandez-Serrano that a general authority to grant administrative closure results in non-adjudication of immigration cases is not present. Administrative closure for the purpose of applying for a provisional unlawful presence waiver “bring[s] an end to the removal process” and permits “the non-citizen [to] voluntarily depart the U.S. for an immigrant visa appointment abroad.” Pet. Br. at 14. Generally, a noncitizen will, upon USCIS’s approval of their provisional unlawful presence waiver, seek to recalendar and terminate their removal proceedings. See, e.g., Romero, 937 F.3d at 287 (“Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.”); see also Ariel Brown, Immigr. Legal Res. Ctr., I-601A Provisional Waiver: Process, Updates, and Pitfalls to Avoid, at 7 (June 2019), https://www.ilrc.org/sites/default/files/resources/i- 601a_process._updates._and_pitfalls_to_avoid_june_2019.pdf (advising noncitizens to move to recalendar and then terminate their removal proceedings upon approval of their provisional unlawful presence waiver or upon receiving their immigrant visa). 

**********

After five months, John Trasvina is the first Biden Administration senior official in to take any responsible, practical steps to deal with the out of control Immigration Court backlog of 1.3 million that continues to grow under Garland’s flailing non-leadership at DOJ. But, he can’t do it by himself.

Without some progressive reforms at EOIR (and I’m NOT talking about an ill-thought-out uncoordinated “Dedicated Docket” or putting more Barr picks on the already compromised Immigration Bench, both of which are likely to build backlog and further reduce quality from its already “sub-basement levels”), the backlog and systemic denials of due process in Garland’s failed Immigration Courts will continue to grow.

That means some new progressive leadership at EOIR and some progressive judges at both the trial and appellate levels. Judges who know how to “leverage” PD with recalcitrant attorneys on both sides.

It also requires an immediate recession by Garland of Sessions’s abominable precedent Matter of Castro-Tum that has been panned by experts and rejected, at least in some form, by every Circuit that has considered it. Additionally, as a practitioner just reminded me, it will depend on whether Trasvina has the will, status, and power to force compliance on what are likely to be some resistant ICE Chief Counsels and Field Office Directors. In the past, local DHS officials have sometimes simply ignored or undermined PD policies with which they disagreed. So, stay tuned!

The quote from the Trasvina memo in the headline above comes from Matter of S-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en banc), a leading “Schmidt BIA” case! Compare this with the White Nationalist absurdist nonsense put out by Sessions about prosecuting every case, no matter how absurd, marginal, or counterproductive, to a conclusion. Sessions spewed forth total, unadulterated BS! 💩

No, and I mean NO, other law enforcement agency in America (save the Trump DHS) operates in such an irresponsible, dishonest, and unrealistic manner! Particularly one whose bad policies and lack of self-restraint helped build a largely unnecessary backlog of 1.3 million cases. Indeed, according to the latest TRAC report, a simply astounding 96% of pending Immigration Court cases involve individuals without criminal charges! https://trac.syr.edu/immigration/quickfacts/?category=eoir. This suggests that with competent  leadership at DOJ and EOIR the backlog could be, and already should have been, dramatically slashed without adversely affecting ICE’s legitimate enforcement priorities!

“The  government wins when justice is done.” Wow! What a novel idea! Sounds like something right out of one of my old speeches to newly-hired INS prosecutors when I was the Deputy General Counsel at INS.

Probably, no coincidence that BIA Appellate Judge Michael J. Heilman, who wrote S-M-J-, once worked with me at INS General Counsel (although, as the record will show, by the time we both became “independent appellate judges” at a BIA that for a brief time functioned more like a “real court of independent experts” — as opposed to the current “deportation railroad” —  our views often diverged).

The 3rd, 4th, 6th, and 7th Circuits have rejected Sessions’s, malicious, racist, incorrect and idiotic, backlog-building decision in Castro-Tum. At the time of the Trasvina memo it appeared that the 6th Circuit was “trending in favor of” Castro-Tum, but the more recent 6th Circuit case featured above emphatically rejects Castro-Tum as applied to those seeking “provisional waivers.” 

So, the 6th is a little confusing. As I read it, there is no Administrative Closing for those approved for SIJS status and waiting for numbers. But, Administrative Closing is available for a “provisional waiver.” This doesn’t make any sense to me. But, what really doesn’t make sense is the unnecessary confusion caused by Garland’s failure to act and his continuation of improper White Nationalist, anti-due process, “worst practices” instituted by his Trumpist predecessors. 

To my knowledge, no Circuit has endorsed Castro-Tum in its entirety. Yet, Garland inexplicably and mindlessly has neither vacated Castro-Tum nor has he directed OIL to stop defending this legally incorrect, backlog-building, due-process-killing “Sessions-Miller” bogus “precedent.” “Part IV” of the Trasvina memo describes the unnecessary confusion and potential for more “Aimless Docket Reshuffling” caused by Garland’s failure to rescind Castro-Tum and reinstate “Administrative Closing” as an essential docket management (and due process) tool in Immigration Court.

Trasvina “gets it” (at least so far). Garland, Monaco, Gupta, Clarke, not so much! Maybe Trasvina should have been the AG!

As a practitioner recently put it:  “Repubs are bold, Dems are wimps when it comes to EOIR!” To date, Garland, Monaco, Gupta, and Clarke seem determined to follow in the footsteps of their ineffective predecessors! If they don’t get smarter, braver, bolder, and much more aggressively progressive, they will continue to fail American democracy in our hour of great need!

🇺🇸🗽⚖️Due Process Forever!

PWS

06-05-21

🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

 

Gender Violence in Central America
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” 
PHOTO: UNHCR website

https://www.dallasnews.com/opinion/commentary/2021/06/03/abuse-of-women-and-children-at-root-of-immigration-crisis/

Abused women at border
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)
Natalie Gonnella-Platts
Natalie Gonnella-Platts
Director, Women’s Initiative
George W. Bush Institute
PHOTO: Bush Institute
Jenny Villatoro
Jenny Villatoro
Associate, George W. Bush Institute-SMU Economic Growth Initiative
PHOTO: George W. Bush Institute

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.

But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.

Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.

Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.

Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.

They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.

Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.

Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.

COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.

Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.

According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.

Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.

Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.

Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.

How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.

Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.

Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.

Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.

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

“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.

What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”

With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system! 

Debi Sanders
Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.

For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?

Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.

George W. Bush
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .

Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences. 

Judge Merrick Garland
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland
Official White House Photo
Public Realm

What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!” 

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism, still right at home at Garland’s EOIR!
Woman Tortured
“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?

Vice President Kamala Harris
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here!
Vice President of the United States
(Official Senate Photo)

I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!

Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!

There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders! 

By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”

PWS

06-05-21

 

🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Stephen Legomsky
Professor Stephen H. Legomsky
Emeritus Professor of Law & Former USG Senior Executive
Washington U. Law
PHOTO: Washington U. Law website

 

https://thehill.com/opinion/immigration/552539-one-quick-asylum-fix-how-garland-can-help-domestic-violence-survivors

Karen & Steve write in The Hill:

With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.

On the campaign trail Joe Biden pledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.

But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.

How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.

The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.

. . . .

One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.

Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.

Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.

. . . .

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

Woman Tortured
Tortured & abused refugee women’s lives continue to hang in the balance while Judge Garland diddles and runs “Miller Lite Judicial Selection Happy Hour” at failing DOJ!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read the complete op-ed at the link.

If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.

I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B- would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!

Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!

Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.” 

If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17  “Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!

The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed. 

Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start. 

Star Chamber Justice
“It’s a long way to Richmond,” as country singer Travis Tritt would say!

“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.

Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!

Miller Lite
“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-09-21

🤮🆘CHAOS IN COURT!  — Unqualified, Controversial Barr Immigration Judge Quits In SF, Leveling Charges Of Systemic Incompetency @ EOIR HQ — “[I]t is hard to understand how any court system can function like this!” — Actually, It Can’t & Hasn’t Functioned As Anything But A Sick Joke For Years! 🤡🦹🏿‍♂️⚰️ — Garland Slow On The Uptake, As Outrage, Anger At His Inept Stewardship, Lack Of Due Process Leadership, Indifference To Institutionalized Racism Grows In Legal Community! — Tal Kopan Reports @ SF Chron

Trump Clown
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much!
(Officially titled “Ass Clown”)
Artist: Scott Scheidly
Orlando, FL
Reproduced by permission

https://www.sfchronicle.com/politics/article/Controversial-S-F-immigration-judge-quits-16107366.php

WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.

The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.

In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”

Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.

“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”

Ford did not immediately respond to a voice mail seeking comment.

Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.

In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.

. . . . .

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

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Read the rest of Tal’s article at the link.

  • The problems are well-documented;
  • The need for reform is immediate;
  • The solutions are obvious;
  • The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!

So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!

The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.

Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.

Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.

Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?

Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!

Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!

Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!

The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?

“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland? 

🇺🇸🗽⚖️🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

04-18-21

COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –  SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”

EYORE
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”

 

COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –  SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”

By Paul Wickham Schmidt

Courtside Exclusive 
April 9, 2021

Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.

As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system. 

That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes. 

The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him. 

The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people. 

Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.” 

DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving  human rights experts and their own supporters “out in the cold.”

There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.

Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts! 

Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system. 

This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!

Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box. 

Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!

I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!

Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!

If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.

Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.  

My three recommendations:

1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.

2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos. 

3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!

Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

Grim Reaper
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!”
Image: Hernan Fednan, Creative Commons License

 

 

PWS

04-10-21

 

⚖️👨🏻‍⚖️ THE BIDEN ADMINISTRATION SHOULD “RE-CERTIFY” THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (NAIJ) — Will They? ❓❓— Marcia Brown Reports For American Prospect

Marcia Brown
Marcia Brown
Writing Fellow
American Prospect
Photo source: American Prospect

https://prospect.org/justice/one-union-biden-has-not-supported-immigration-judges/

. . . .

The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.

As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.

Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.

“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.

Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.

Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.

Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.

. . . .

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

Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence”  at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.

This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda. 

Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” —  few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR  — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA —  continued unabated.

Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up! 

Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!

To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director. 

Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.

Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!

FULL DISCLOSURE: I am a proud retired member of the NAIJ!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-15-21

⚖️🗽JENNIFER DOHERTY @ LAW360 ANALYZES JUDGE ILLSTON’S  MASSIVE TAKEDOWN OF EOIR’S ANTI-DUE-PROCESS REGULATIONS — I Speak Out On Why Judge Garland Needs To Pull Plug On The EOIR Clown Show 🤡 Sooner, Rather Than Later! — PLUS, BONUS COVERAGE: My “Open Letter” To Judge Garland!

 

Jennifer Doherty
Jennifer Doherty
Reporter
Law 360
Photo: Twitter

https://www.law360.com/articles/1363797

Here’ what I had to say to Jennifer:

. . ..

Retired Immigration Judge Paul Wickham Schmidt, a former chairman of the Board of Immigration Appeals who was also general counsel to the Immigration and Naturalization Service at the time of the EOIR’s creation, likewise praised Judge Illston’s order in an interview with Law360 Thursday.

Judge Schmidt, a vocal opponent of the Trump administration’s management of the EOIR, characterized the rule as part of a larger effort to discourage immigrants by stacking the courts against them, rather than a good-faith effort to reduce ballooning backlogs.

“When your docket is 1.3 million, it’s not the fact that someone is getting a few extra days in a continuance, it’s the fact that DHS is adding more cases,” he said.

As for whether the DOJ under President Joe Biden would continue defending the rule — as it is for one of the Trump-era asylum rules — Judge Schmidt said it was hard to say. But newly confirmed Attorney General Merrick Garland should prioritize changing the EOIR, as he stated his mission would be to restore nonpartisanship and defense of civil rights as pillars of the department, the judge said.

“If Garland wants to straighten out the Department of Justice, he’s got to straighten out EOIR. EOIR is a living refutation of everything Garland says he stands for,” Judge Schmidt told Law360.

Representatives for the DOJ did not respond to a request for comment Thursday.

The immigrant advocates are represented by Jingni (Jenny) Zhao, Anoop Prasad and Glenn Michael Katon of Asian Americans Advancing Justice — Asian Law Caucus, Seferina Young Berch, Stephen Chang, Naomi Ariel Igra, Michael O McGuinness, Scott T. Nonaka and Irene Inkyu Yang of Sidley Austin LLP, and Judah Ben Lakin and Amalia Margarete Wille of Lakin & Wille LLP.

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

Thankfully, Jennifer is operating “outside the paywall” on this particular article. So, all of you can get full access to her outstanding reporting on this case at the above link.

Dear Judge Garland:

Congratulations again and best wishes on your recent appointment as our Attorney General. I write to beg you, as a former DOJ colleague, Senior Executive, and administrative judge to deal immediately with a festering problem undermining the entire U.S. Justice system that is unfolding right under your nose, whether or not you have had time to focus on it.

A number of the individuals and organizations whose help you will need to fix EOIR and achieve equal justice for all in America are instead having their time and precious resources diverted to defending our justice system and the Constitution from absurdly illegal and obscenely counterproductive decisions and actions now being taken in YOUR NAME, such as the illegal EOIR regulations in this case. Indeed, these regulations and many other travesties still being pursued by EOIR at the behest of the former regime should have been on the chopping block long before you were even sworn in.

Not only are you now squandering Executive Branch and private sector resources that could better be devoted to solving problems, you are also wasting the time and trying the patience of thoughtful Federal Judges like U.S. District Judge Susan Illston. Certainly, as a former highly admired and respected Federal Judge, you know the value of judicial time in our system.

Additionally, failure to take immediate steps to end the dysfunction, disorder, and nonsense still streaming from EOIR on a daily basis is not only destroying vulnerable human lives, but also costing you goodwill with the very NGOs and talented, dedicated, often pro bono advocates whose assistance and support will be absolutely necessary for you to succeed in your stated objectives of returning integrity to the DOJ, eradicating institutionalized racism, and finally, finally achieving long overdue equal justice under law for all in America.

As I told Jennifer, EOIR is a “living contradiction” of everything you said in your confirmation hearing. It’s also a repudiation of the values that I have always seen and respected in you, even if mostly from afar.

I beseech you to “pull the plug” on today’s EOIR and put someone in there who can start getting it back on track: A “Due Process/Human Rights/Immigration Guru,” if you will. In terms to which we both can relate, you must find a judicial leader in the image of our late great colleague from the Carter DOJ, and your former colleague on the D.C. Circuit, Judge Patricia M. Wald. As we both know, she was was brilliant, energetic, yet highly practical, well-organized, and unswervingly committed to realizing social justice on both the national and eventually international stages. 

Put someone who can run a real due-process-oriented court system in charge of the EOIR mess and let ‘er rip. You can cement your legacy to American Justice by achieving EOIR’s once noble, now discarded, vision that many of us who once served there established to guide our actions: “Through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.”

With my very best wishes for your continued success,

Your former DOJ colleague from decades past,

Paul 

 

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

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

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member, Round Table of Former Immigration Judges
Honorable Lisa Dornell
Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges, PHOTO: CNN
Knightess
Knightess of the Round Table

KEY QUOTE FROM REPORT:

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

2

American Bar Association • Achieving America’s Immigration Promise

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

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

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

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

READ THE COMPLETE REPORT HERE:

ABA Achieving America’s Immigration Promise Final 1.13.21

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

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

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

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

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

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

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

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

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

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

PWS

01-17-21

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

🇺🇸🗽⚖️FLASH: BIDEN ANNOUNCES LEGALIZATION PLAN: Important Step In Rapidly Eliminating Unnecessary Immigration Court Backlog, Ending “New American Gulag,” Restoring & Enhancing Due Process, Transitioning To Independent Immigration Court — Quick End To Toxic, Dysfunctional “EOIR Clown Show”🤡🦹🏿‍♂️ In Sight? 

https://apple.news/Aw4kuHzfCQEuY_Kbk8FmoLg

From the LA Times:

During his first days in office, President-elect Joe Biden plans to unveil a legislative proposal that would include a path to citizenship for 11 million immigrants in the U.S. illegally, according to activists in communication with his transition team.

By CINDY CARCAMO, ANDREA CASTILLO, MOLLY O’TOOLE

January 16, 2021

During his first days in office, President-elect Joe Biden plans to send a groundbreaking legislative package to Congress to address the long-elusive goal of immigration reform, including what’s certain to be a controversial centerpiece: a pathway to citizenship for an estimated 11 million immigrants who are in the country without legal status, according to immigrant rights activists in communication with the Biden-Harris transition team.

The bill also would provide a shorter pathway to citizenship for hundreds of thousands of people with temporary protected status and beneficiaries of Deferred Action for Childhood Arrivals who were brought to the U.S. as children, and probably also for certain front-line essential workers, vast numbers of whom are immigrants.

CALIFORNIA

DACA changed a generation of California immigrants. These are some of their stories

In a significant departure from many previous immigration bills passed under both Democratic and Republican administrations, the proposed legislation would not contain any provisions directly linking an expansion of immigration with stepped-up enforcement and security measures, said Marielena Hincapié, executive director of the National Immigration Law Center Immigrant Justice Fund, who has been consulted on the proposal by Biden staffers.

. . . .

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

Read the full story at the link.

This will present Judge Garland and Vanita Gupta @ DOJ with a timely, outstanding opportunity to get rid of the “EOIR Clown Show🤡,” replace it with a functioning expert judiciary 🧑🏽‍⚖️👨🏻‍⚖️⚖️ and competent judicial administrators, get the vast bulk of these cases off the largely “manufactured” backlog, and get the Immigration Courts and the BIA operating at or near “real time.”

That, in turn will give a new group of expert judges at the BIA, with practical asylum and human rights backgrounds, a chance to implement the fair, generous, consistent interpretation of asylum law intended under the Refugee Act of 1980 and to institute a fair and efficient U.S. asylum system that will serve humanity, honor and exemplify Constitutional due process, and advance our national interests.🗽🇺🇸

Should be a win-win-win for the country and refugees provided that the right, progressive, “steeped in due process and fundamental fairness” judicial talent is put in place to lead and direct the “new EOIR.” No more “Clown Show!” 🤡No more “Amateur Night at the Bijou!” 🤹 Time to give the immigration and human rights experts, a new generation of “practical scholars,” the chance to solve problems and lead the now-broken Immigration Courts to better days!

Not surprisingly, the current “Clown Show” 🤡 and “band of malicious incompetents”🦹🏿‍♂️ @ EOIR “management” are totally out of step — and actually mocking — the direction the Biden Administration is taking on immigration and asylum, even as their time runs out. At a minimum, that warrants immediate reassignment to jobs where they can do no further damage to the American justice system and those who rely upon it. For some who have actually aided and abetted the “human rights criminals” in the DOJ kakistocracy and squandered public resources on illegal gimmicks, further action and accountability could be necessary and appropriate down the line!

Due Process Forever!

PWS

01-16-21