"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Judge Tipton in the Southern District of Texas enjoined the 100-day removal pause. The 105-page order has something for everyone. For the history fans, there are references or citations to John Marshall, Joseph Story, and James Madison. For the federalism aficionados, there’s a description of the three branches of government and an explanation about the relationship between the federal government and the states. For the administrative law scholars and Bluebook fans, the proposition that “ICE is an agency within DHS” is supported by a footnote, a citation, and a parenthetical explanation. And for anyone interested in bilingual education, you’ll note that “regular” students cost Texas one amount and students enrolled in the state’s bilingual program cost another amount.
César Cuauhtémoc García Hernández
Professor of Law
University of Denver crimmigration.com
(he/him/his/el)
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The case name says it all, particularly in light of the past two weeks. Indeed, “Texas v. The People” would be equally fitting. GOP misrule and the vile shenanigans of GOP politicos, like Texas AG Ken Paxton (who also fled the state during the crisis he and his party helped cause) has real life consequences. It kills and harms U.S. citizens of all political persuasions in addition to foreign nationals in our country.
Note that the order does not purport to stop DHS or EOIR from granting stays of removal on a case by case basis.
Notwithstanding the flaws in Judge Tipton’s reasoning, cogently pointed out by Cesar, I wouldn’t put much stock in the chances that the right-wing dominated Fifth Circuit or the Supremes will rein in Tipton and other righty jurists. I predict that GOP jurists oft-expressed grave concerns about the effect of nationwide injunctions will dissipate now that they are being used as a tool to undermine the Biden Administration’s attempts to return rationality and humanity to our justice system.
The deep problems in the Article III Judiciary, aggravated by four years of bad appointments by Trump & Mitch, reinforce the pressing need for immediate Immigration Court reform, starting with replacing the BIA. That is the most pressing task facing the Administration on the judicial front. The EOIR judiciary is one that the Biden Administration has complete authority to fix with better judges. Now, not later!
And, with better judges at EOIR, there will be fewer bad legal decisions thrown into the Article III “lottery.” Moreover, as I continue to point out, it will give the Administration a much-needed pool of diverse, readily identifiable, talented, experienced, progressive, due-process/human rights committed jurists to draw on for Article III appointments. Additionally, it sets the stage for legislation to create an independent Article I U.S. Immigration Court.
Can advocates for racial justice, human rights, and immigrants’ rights finally get the message across to Judge Garland about the urgent need to act decisively? Or, like the Obama Administration, will this turn out to be another golden opportunity for justice squandered?
Unfortunately, I could find little in this week’s confirmation hearings to visibly show that Judge Garland “got” the connection between the refuge that he and his family were so grateful for and the continuing unconscionable mess at EOIR.
Indeed, if Judge Garland and his family showed up at our borders today seeking refuge from persecution, they would unceremoniously have been loaded onto a plane and “orbited” back to the persecution from which they fled without any process at all, let alone “due process of law.” Even if they had gotten a hearing, an EOIR “judge” somewhere along the line would undoubtedly have found a “reason to deny” regardless of the need for protection.
For a good measure, they probably would have been mocked as “criminals, line jumpers, and job stealers” by GOP politicos and their toadies still stashed throughout our broken and compromised immigration bureaucracy. Their lives would have been treated as worthless; their removal to persecution, harm and possible death, just another “statistic” to tout in connection with false claims to having achieved “border security!”
Use the “overseas refugee program?” Probably not. Although Biden has pledged to restart refugee admissions, as a practical matter our once proud and highly efficient refugee processing system is currently in tatters after four years of intentional abuse inflicted by the defeated regime.
Every day that the ongoing problems at EOIR remain unresolved is another day of injustice for refugees and other migrants, as well as another day of frustration and abuse heaped on those attempting to help them achieve justice.
For the Republicans, justice is not something that “rolls down like waters,” it’s something that comes down like a hammer.
This was a failure that Sen. Cory Booker (D-N.J.) aimed to make clear when he asked Garland whether he was familiar with a biblical reference to justice that advises to “act justly and to love mercy.” Much of Booker’s questioning centered around racism within the criminal justice system — the disproportionate arrests of minorities, lousy legal representation for the poor, sentencing imbalances and the issue that caused Kennedy such befuddlement, implicit bias.
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
“I come from a family where my grandparents fled antisemitism and persecution,” Garland said. And then he stopped. He sat in silence for more than a few beats. And when he resumed, his voice cracked. “The country took us in and protected us. And I feel an obligation to the country, to pay back.”
“This is the highest, best use of my one set of skills,” Garland said. “And so I want very much to be the kind of attorney general you’re saying I could be.”
And that would be one focused on protecting the rights of the greatest and the least — and even the worst. Punishment is part of the job. But it’s not the definition of justice.
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Read Robin’s complete article at the link. She can write! So delighted the Post got her off the “fashion beat” where her talents were being squandered, and got her onto more serious stuff!
Judge Garland’s awareness and humility are refreshing. But, unless he takes immediate action to redo EOIR and the rest of the DOJ’s immigration kakistocracy, it won’t mean much.
Judge, it could have been YOUR family forced to suffer kidnapping, extortion, murder threats, family separation, and other overtly cruel and inhuman treatment in squalid camps in Mexico, waiting for “hearings” that would never come before “judges” known for denying almost 100% of claims regardless of merit! YOUR family’s plea for refugee could have been rejected by some nativist bureaucrat or “hand-selected by the prosecutor” “Deportation Judge” for specious, biased reasons!
YOUR family was welcomed! But what if the only thought had been how to “best deter” “you and others like you” from coming?
Maybe because you and yours are White and hail from Eastern Europe, the “rule of law” has a different meaning and impact than it would if you were Brown, Black, or some other “non-White” skin color and had the misfortune to be from a “shithole” country where we have no concern for what happens to humanity? Or, worse yet, what if your family’s claim had been based on your Grandmother’s gender status? You would really be out of luck under today’s overtly misogynist approach to refugee law flowing out of EOIR!
Then, where would you and your nice family be today? Would you even be? THOSE are the questions you should be asking yourself!
Unfortunately, it’s easy to see that folks like Cotton, Hawley, Cruz, and Kennedy will be deeply offended if you attack their White Nationalist privilege, views, and agendas in any meaningful way.
And, if you actually make progress in holding the Capitol insurrectionists accountable, you’ll have to deal with the unapologetic, disingenuous, anti-democracy, insurrectionist actions of folks like Hawley and Cruz. That won’t be too “bipartisanly popular” with a GOP gang that just overwhelmingly worked and voted to ignore the evidence and “acquit” the “Chief Insurrectionist.”Who, by the way, was a main purveyor of the institutionalized racism that infects EOIR and the rest of the DOJ. It’s no real secret that “America’s anti-democracy party” aids, abets, encourages, and exonerates White Supremacists and domestic terrorists.
In the GOP world, “mercy” and “due process” are reserved for White guys like Trump, Flynn, Stone, White Supremacists, and “Q-Anoners.” Folks of color and migrants exist largely below the floor level of the GOP’s definition of “person” or “human.” For them, justice is a “hammer” to beat them into submission and punish them for asserting their rights.
So, restoring the rule of law at the DOJ is going to be a tough job —you need to clean house and get the right folks (mostly from outside Government) in to help you. And, you must examine carefully the roles of many career civil servants who chose to be part of the problems outlined by Chairman Durbin in his opening remarks.
You’re also going to have to “tune out” the criticism, harassment, and unhelpful “input” you’re likely to get from GOP legislators in both Houses who are firmly committed to the former regime’s White Nationalist agenda of “Dred Scottification,” disenfranchisement, nativism, and preventing equal justice for persons of color, of any status!
Think about all the reasons why you and your family are grateful for the treatment you received from our country. Then, think of the ways you could make those things a reality for all persons seeking refuge or just treatment, regardless of skin color, creed, or status. That’s the way you can “give back” at today’s DOJ! That’s the way you can be remembered as the “father of the diverse, representative, independent, due-process exemplifying21st Century Immigration Judiciary!” 🧑🏽⚖️👩⚖️👨🏻⚖️
It’s not “rocket science.” Actually, just carrying out our current legal and moral obligations. It’s well within our capabilities, particularly with the right people in charge. Why wasn’t a plan to get this done “front and center” in Judge Garland’s testimony today?
🇺🇸⚖️🗽Due Process Forever! Human misery doesn‘t stop for “study.” Not all damage and harm is reversible! What if it were YOU and YOUR family?
By Micah Schwartzman and David Fontana write in WashPost:
. . . .
Assuming federal appellate judges decide, on average (and conservatively), at least several hundred cases per year, Trump’s judges will decide tens of thousands more cases than their Obama-appointed counterparts. To put it bluntly: The age of judges matters.
But Democrats still aren’t getting the message. At a Brookings Institution event in January, former attorney general Eric Holder touted racial and ethnic diversity — and diversity of professional background — but also said judges should only be appointed if they are 50 years old or older.
It would be a serious mistake for President Biden to follow that last piece of advice, and he would be repeating an error that Obama made. The Obama administration made substantial progress in diversifying the bench, but took a misguided approach when it came to age.
In an attempt to depoliticize judicial nominations, Obama mostly appointed highly experienced sitting judges and federal prosecutors during his first term as president. Senate Republicans rejected the olive branch, and in fact escalated obstruction of his nominees. Biden also wants to lower the temperature of partisan conflict, but there is no reason to think choosing older judges will have that effect.
Nominating younger judges is also crucial for developing leaders on the federal bench, including future Supreme Court justices. When presidents look for nominees to elevate to the high court, they usually select judges from the federal appellate courts. For example, Neil M. Gorsuch was a mere 38 years old when nominated (by President George W. Bush) to become an appellate judge, Brett M. Kavanaugh was 41 (also Bush), and Amy Coney Barrett was 45 (Trump). When later elevated to the Supreme Court they were 49, 53 and 48, respectively (average age: 50). Meanwhile, because Obama selected older judges, Biden will find only three Democratically appointed judges across the entire federal courts of appeals who are at that age or younger.
Younger federal judges have more time to build up a jurisprudence — a body of legal values, principles and judgments — as well as a professional network of other judges, lawyers and clerks who can develop, share and amplify their legal views. Republicans have long understood this: Many of their most famous and influential appointees were put on the appellate bench at young ages, including Frank Easterbrook (nominated at age 36), Michael Luttig (36), Kenneth Starr (37), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), Richard Posner (42), Antonin Scalia (46) and John Roberts (47).
If Democrats hope to shape the law for the next generation, they, too, need younger judges who have both the energy and a sufficiently long tenure on the bench to leave lasting legacies. Consider the example of Justice Sonia Sotomayor, who was one of President Bill Clinton’s youngest appellate nominees, at age 43; she was 54 when Obama nominated her to the Supreme Court in 2009. Over the past two decades, she has developed a distinctive and powerful voice on the bench. It’s unlikely she would have done so had she been nominated to the appellate court in her early-to-mid 50s.
The Biden administration has made an admirable commitment to diversifying the bench — signaling his intention to depart from Trump’s example. Not a single one of Trump’s 54 appointments to the appellate courts was African American. But there is no trade-off between youth and diversity. If anything, there are more women and more members of minority groups represented in the legal profession now than at any time in the past. At least when it comes to putting judges on the bench, this president can have it all. He can diversify the bench while at the same time appointing people who will be influential for decades, narrowing the partisan age gap in the judicial branch.
Micah J. Schwartzman is the Hardy Cross Dillard professor of law at the University of Virginia.
David Fontana is Samuel Tyler Research Professor at the George Washington University Law School.
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Read the rest of this article at the: above link.
Absolutely right!
And, nowhere did the Obama Administration do a worse job than with the U.S. Immigration Courts which were entirely under their control at the DOJ! Can’t blame Moscow Mitch and his GOP Senate cronies for this failure!
As one of my Round Table ⚔️🛡 colleagues accurately described it:
I continue to repeat that following the Bush Administration’s terrible record for appointments based on Republican credentials and loyalty, Holder merely shuffled the deck of long-time EOIR bureaucrats, appointing as Chief IJ and BIA Chair and Vice-Chair individuals whose idea of leadership was keeping their heads down and doing what had always been done before.There is presently a need for much more inspired appointments at the top.
Amen! I keep saying it: There needs to be an immediate “clean sweep” of EOIR so-called upper “management” and at the BIA. There are plenty of much better qualified folks out there who could “hit the ground running” on either a temporary or permanent basis.
Then, there must be a proper merit-based selection system with public participation and an active, positive recruitment effort that will attract a diverse group of “practical scholars” with actual experience representing asylum seekers and other migrants in Immigration Court. (“Posting” judicial vacancies on “USA Jobs” for a couple of weeks is both absurdly inadequate and “designed to fail” if your objective is to create a diverse expert judiciary of “the best, brightest, and most capable”).
Then, these merit-based criteria should be applied over time to “re-compete” all existing Immigration Judge jobs. These necessary steps will tie-in with the legislation to create an Article I Immigration Court. “Turn over” a top-flight “model judiciary” rather than the unmitigated disaster that now exists at EOIR.
An important consequence of the failure of Obama to build a better, progressive Immigration Judiciary is that it has deprived President Biden of a pool of younger progressive Immigration Judges with proven judicial credentials who, in turn, would have been prime candidates for filling Article III vacancies.
That’s not to say that some sitting Immigration Judges don’t have Article III credentials. Some undoubtedly have stood tall against the “Dred Scottification” of the Immigration Courts under Miller & Co. Not enough, but some.
However, had the Obama Administration acted with more wisdom, courage, and competence, the pool would be much larger — perhaps large enough to have put up a more concerted and higher profile resistance to the lawless, anti-immigrant, anti-due process agenda at all levels of EOIR over the past four years!
Using better Immigration Judges as a source of progressive Article III Judges would also solve another glaring problem that has undermined equal justice and racial justice within the Article III Judiciary: the lack of expertise in immigration and human rights laws (which currently make up a disproportionate part of the Article III civil docket) and the human empathy and practical problem solving ability that comes from representing asylum applicants and others in Immigration Court. Nowhere is the lack of scholarship, integrity, and human understanding more obvious than with the woodenly anti-due process, anti-Constitutional, anti-rule-of-law performance of the tone-deaf and totally out of touch GOP majority on the Supremes in immigration, human rights, and civil rights cases.
It’s no coincidence that the best-qualified of the current Supremes, Justice Sonia Sotomayor, has overtly “called out” her right wing colleagues’ inexcusable performance on cases affecting immigrants’ rights and human rights. It’s also no coincidence that in his new highly critical look at the failures of the Federal Judiciary in criminal justice, U.S. District Judge Jed S. Rakoff “would also require prosecutors to periodically represent indigent defendants so they appreciate the ‘one-sided nature . . . of the plea bargaining process.’” https://www.washingtonpost.com/outlook/2021/02/16/court-appointments-age-biden-trump-judges-age/
I guarantee that none of the current Supremes would put up with the outrageously unfair, biased, degrading, and dehumanizing practices intentionally and maliciously inflicted on vulnerable migrants and their attorneys on a daily basis at both the trial and appellate levels of our broken and dysfunctional Immigration Courts if they had personally experienced it. Nor should Judge Garland put up with the totally unacceptable status quo!
A better Immigration Court isn’t rocket science. It’s quite achievable on a realistic timeline. But, it will take both the will to act and putting the right “practical experts” (predominantly from outside the current Government) in place. Past Dem Administrations have failed on both counts, some worse than others.
The Biden Administration can’t afford to fail on Immigration Court reform! For the sake of the vulnerable individuals whose lives are at stake! For the sake of America whose future is at stake!
The White House announced a sweeping immigration bill Thursday that would create an eight-year path to citizenship for millions of immigrants already in the country and provide a faster track for undocumented immigrants brought to the US as children.
The legislation faces an uphill climb in a narrowly divided Congress, where House Speaker Nancy Pelosi has just a five-vote margin and Senate Democrats do not have the 60 Democratic votes needed to pass the measure with just their party’s support.
Administration officials argued Wednesday evening that the legislation was an attempt by President Joe Biden to restart a conversation on overhauling the US immigration system and said he remained open to negotiating.
“He was in the Senate for 36 years, and he is the first to tell you the legislative process can look different on the other end than where it starts,” one administration official said in a call with reporters, adding that Biden would be “willing to work with Congress.”
The effort comes as there are multiple standalone bills in Congress aimed at revising smaller pieces of the country’s immigration system. Sens. Lindsey Graham, a Republican from South Carolina, and Majority Whip Dick Durbin, a Democrat from Illinois, for example, have reintroduced their DREAM Act, which would provide a path to citizenship for immigrants who came to the country illegally as children.
Administration officials said the best path forward and plans either to pass one bill or break it into multiple pieces would be up to Congress.
“There’s things that I would deal by itself, but not at the expense of saying, ‘I’m never going to do the other.’ There is a reasonable path to citizenship,” Biden said at a CNN town hall in Milwaukee on Tuesday.
“The President is committed to working with Congress to engage in conversations about the best way forward,” one administration official said.
Officials did not say if they believed that the reconciliation process, a special budget tool that applies only to a specific subset of legislation and allows the Senate to pass bills with a simple majority, would be applicable for an immigration bill. “Too early to speculate about it right now,” one official said.
The Senate is working on passing the President’s coronavirus relief legislation through reconciliation. The expectation is that the administration could also use the process to pass an infrastructure bill.
Biden’s immigration bill will be introduced by Democrats Bob Menendez of New Jersey in the Senate and Linda Sanchez of California in the House.
Read the rest of Priscilla’s & Lauren’s analysis at the link.
The White House “Fact Sheet” on the legislation is also available at the link at the end of the above excerpt.
Here’s what that summary says about the U.S. Immigration Courts:
Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals. Funding is authorized for legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims. The bill also provides funding for school districts educating unaccompanied children, while clarifying sponsor responsibilities for such children.
Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.
Unfortunately, the bill does not contain the most important legislative solution: An Article I Immigration Court. Nevertheless, a separate Article I bill will be introduced in the House soon. Since the “USCA of 2021” is largely a “talking draft” anyway, there is no reason why Article I couldn’t be combined with the other changes in the bill.
While attention to improving the Immigration Courts is welcome and long overdue, I think this proposal actually misses the major point: What’s needed right now isn’t necessarily more Immigration Judges; it’s better Immigration Judges, starting, but not ending, with a replacement of the current dysfunctional Board of Immigration Appeals. Only with the improvements in the administrative case law, docket management, and “best practices” that better EOIR judges would bring could we really tell whether more judges are actually necessary.
Right now, throwing more bodies into the ungodly mess at EOIR would only create confusion and aggravate existing problems. And, while the proposal correctly spotlights woeful inadequacies in IJ training and professional development, those alone will not be enough to restore due process to a system wracked by decades of bad judicial selection practices that basically have excluded the “best and brightest” immigration experts from the private sector, those with actual experience representing individuals in Immigration Court, from the “21st Century Immigration Judiciary.”
The good news: Judge Garland won’t need legislation to get this system back on track by:
Immediately replacing the current BIA with judges who are renowned experts in immigration, human rights, and due process, with special attention to those with actual experience representing asylum seekers;
Vacating all of the improper Sessions and Barr precedents, and letting the “new BIA” straighten out the law and implement best practices, including holding IJs who are members of the “Asylum Deniers Club” accountable;
Implementing efficient merit-based judicial hiring practices which would involve public input and actively recruit from communities now underrepresented in the Immigration Judiciary;
Eventually re-competing all Immigration Judge jobs under these merit criteria, again with public input on the performance of current judges part of the process;
Replacing all of EOIR’s incompetent upper “management” with competent professional judicial administrators;
Examining the justification and “bang for the buck” in EOIR’s bloated, yet highly ineffective, headquarters operation in Falls Church with an eye toward maximizing support for the local Immigration Courts and minimizing counterproductive and politicized micromanagement and interference with the operation of local courts;
Making peace and working with the National Association of Immigration Judges (“NAIJ”), which is much more “on top of” the real problems in the Immigration Courts than often clueless EOIR “management” in Falls Church;
Instituting e-filing and other long overdue 21st Century judicial administration practices in the Immigration Courts;
Working cooperatively with the private bar, NGOs, ICE, and local IJs to maximize representation and improve docketing and scheduling practices.
Judge Garland has the authority to make all the foregoing changes, which will immediately improve the delivery of justice at the critical “retail level” of our justice system and make the achievement of racial justice and equal justice for all more than just “pipe dreams.” Immigrant justice is essential for racial justice!
The only question is whether Judge Garland will actually do what’s necessary. If not, he can expect some “aggressive pushback” from those of us who are fed up with the “EOIR Clown Show” 🤡🦹🏿♂️☠️ and its daily mockery of American justice!
Prof. Geoffrey Hoffman, Nov. 24, 2015 – “It is important, I think, to note the import but also the paradox behind the BIA’s latest precedent decision, Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) that admonishes IJ’s not to bully minors. In the decision, the Board discusses conduct by an Immigration Judge that can be construed as “bullying or hostile” behavior and says it is “never appropriate,” particularly in cases involving “minor respondents,” concluding such behavior may result in remand to a different Immigration Judge. I am glad that the Board is finally taking to task this kind of egregious IJ behavior. On the one hand, we should applaud the Board for pointing out this behavior and finally holding it up to the light of day in an important new precedent decision. On the other hand, it is a sad commentary on the behavior of some judges that the appellate body of the EOIR has to even say this publicly. Of course judges should not behave this way, and the fact that recusal is mandated by the BIA in such situations is something to congratulate the Board for now getting behind. But, one wonders whether this response is at all sufficient. Whether, as an IJ, I can now say, “Well, the worst that will happen is that I will have the case taken away from me on remand, and therefore I do not have to deal with this mess anymore.” It doesn’t seem like much of a deterrent.
In a case which I handled on appeal, the IJ denied the respondent’s attorney the opportunity to call a psychologist to testify about the respondent’s mental condition and disease (bipolar disorder), a fact which went directly to the particular social group and seemed particularly relevant to me. When the attorney respectfully requested permission to put on the expert witness, and specially whether the witness could testify about any medications the respondent had taken or was taking the IJ in response asked the attorney whether she was on any medications. Was she on any medications? I read and re-read that line again and again as I prepared the appeal thinking perhaps I had missed the joke. But this wasn’t a joke. It was simply intemperate behavior by an IJ. Thankfully, the BIA correctly and compassionately remanded the case but based on the bipolar condition, recognizing that it could form a valid PSG. No mention was made of the issue of judicial impropriety I had raised in the brief. In other appeals I have done before the Board, I have noticed that when raising issues with the Board about IJ’s missing evidence or even misconstruing the factual background, the Board does not seem to deal with these issues head-on but instead bases their decisions on some other ground, preferring to adjudicate the appeal on a legal ground rather than on the basis of judicial misconduct or judicial mistake. And there is nothing surprising here, with the Board insulating IJ’s from admonishment and not highlighting their misunderstandings of the record, but there is I think a cost which has been underreported or perhaps not even appreciated. The cost is that IJs become used to behaving in a way that can be described as intemperate at best and demeaning or demoralizing and abusive, at worst.
This said, I do have a lot of sympathy for many IJs, having worked very hard myself for a federal judge for two years after law school, and seeing and appreciating the incredible stress and responsibilities of being a judge. The IJs, it should be mentioned, have it worse: they have to juggle a case load of hundreds and hundreds of cases, while at the same time maintaining compassion and composure at all times, and at the same time providing a clear, cogent and correct legal analysis in all cases and contexts. However, and this needs to be said, I think some IJs should not be IJs and should not have been selected to be IJs. If we want to make the immigration court system work we need to do a better job in vetting these judges, choosing based on temperament and suitability to deal with the rigors of handling all these cases with compassion and professionalism.
This is the time now (at this very moment) to make this statement as loudly and boldly as possible, since EOIR right now is advertising for 50+ new judgeships across the country. Since we have approximately 250+ judges, this represents an approximate 20 percent increase. I implore EOIR to make these decisions with due regard to how the judges might act in future, not just whether they have experience deporting people, working for the government in other capacities, or experiences such as being in the military. While those are factors, let’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”
Unfortunately, the Obama Administration ignored Geoffrey’s plea. Instead of creating a well-qualified, independent, progressive judiciary that could achieve the “EOIR Vision” of: “Through teamwork and innovation becoming the world’s best tribunals, guaranteeing fairness and due process for all,” the Obama Administration handed out immigration judgeships like they were service awards for DHS prosecutors, DOJ attorneys, and other government lawyers.
The Obama selections appeared designed primarily to avoid appointing anyone who might have the background, backbone, and courage to “rock the boat” and stand up for immigrants’ rights even when it meant rejecting ill-advised and legally questionable Administration enforcement policies and procedures. In other words, truly independent judging and thinking was discouraged in favor of a “go along to get along” atmosphere mischaracterized as “collegiality.”
Sure, collegiality has its benefits. But, in the end, independent judging is about justice for the individuals coming before the courts, not about institutional survival, job preservation, making friends, achieving bureaucratic performance goals, or pleasing political “handlers” who don’t want to read about their “subordinates” in the “funny papers.” When I was ousted from the BIA as part of the so-called “Ashcroft purge,” I noticed that those those judges who were “collegial” but outspoken about immigrants’ legal rights got punished right along with those who were perceived as “less collegial” in standing up for the same rights.
Moreover, the Obama folks designed an unwieldy and astoundingly inefficient “Rube Goldberg selection system” that took more than two years to fill an average IJ vacancy — much longer than the Senate confirmation process! This was at a time when backlogs were building and the NAIJ and the “line IJs” were begging “EOIR management” for help. “Management” could have achieved comparable results simply by throwing darts at a board containing the names of government attorneys. And, it would have cut the red tape.
Inept as the Obama Administration might have been, the Trump kakistocracy of course proved to be our worst nightmare. They “weaponized” the EOIR immigration judiciary into a tool of White Nationalist nativist enforcement, racial injustice, and misogyny. Here are some of the things Sessions and Barr did at the behest of Stephen Miller:
“Packed” the BIA with judges known as “asylum deniers” — some with denial rates in excess of 90%;
Appointed IJs from the Atlanta Immigration Court, which had generated Matter of Y-S-L-C-, to the BIA in an overt attempt to replicate the “Asylum Free Zone” as Atlanta was known throughout the private bar;
“Rewarded” with BIA appointments several judges who had complaints lodged against them for their rude and unprofessional in-court behavior, open hostility to asylum seekers (particularly women), and unprofessional treatment of private attorneys;
Issued bogus EOIR and BIA precedents, some on their “own motion,” that were almost 100% against respondents and in favor of DHS Enforcement while undoing long-standing rules that had promoted fairness to asylum seekers and sound docket management;
Appointed almost all government/prosecutorial background Immigration Judges, many without immigration qualifications, others associated with anti-immigrant or anti-gay groups;
“Decertified” the National Association of Immigration Judges (“NAIJ”) as punishment for speaking out against gross mismanagement at EOIR and DOJ;
Imposed due-process-denying unprofessional “production quotas” on IJs intended to increase deportation rates;
Deprived IJs of effective management control over their dockets, while engaging in endless “Aimless Docket Reshuffling;”
Unethically exhorted IJs to treat the DHS as their “partners” in enforcing immigration laws;
Gave the Director — essentially a political appointee disguised as a career executive — authority to interfere with BIA decision making in certain cases;
Basically reduced Immigration Judges to the status of “deportation clerks” while falsely claiming that they were “management officials” to “bust” the union;
“Dumbed down” immigration judge training;
Artificially “jacked up” the Immigration Court backlog to an astounding 1.3 million cases — even with twice the number of IJs on the bench.
As one of my esteemed Round Table colleagues said, “since [Geoffrey’s article] was written, record numbers of good IJs resigned over the past 4 years, many good candidates wouldn’t apply (or if they did, likely weren’t chosen) over the past 4 years, and then just the general drop in quality that comes with that degree of expansion [in the absence of competent planning].”
The lack of compassion, glaring disregard for the protective purposes of refugee law, and absence of human understanding as to what it means to be a refugee seeking salvation simply screams out from the last four years of perverse AG and BIA precedents as well as from some of the elementary mistakes made by EOIR judges at all levels in the numerous cases reversed by Courts of Appeals over the past four years.
And, this is just the “tip of the iceberg.” Many seeking protection are denied any hearings at all, railroaded out without understanding what’s happening, or simply give up without appealing wrong decisions and denials of due process — worn down by the abusive and unnecessary detention that EOIR helps promote and the intentionally “user unfriendly” procedures developed to discourage individuals from asserting their legal and human rights.
While the broken and reeling Department of Justice presents many challenges, I predict that Judge Garland’s tenure will be remembered largely by how he deals, or doesn’t deal, with the total disaster in the U.S. Immigration Courts. The Trump regime’s attack on democracy and people of color began with immigration, and the effort to dehumanize and degrade migrants continued until the final day.
Will Judge Garland leave behind a reformed, progressive, due-process-oriented system that is a model judiciary? One that finally fulfills the vision of — “Through Teamwork and innovation action becoming the world’s best tribunals, guaranteeing fairness and due process for all?” A court that can easily transition out of the DOJ intro an independent Article I Judiciary? Or will he leave behind another disgraceful mess and the dead bodies, broken dreams, and visible betrayals of American values to prove it?
Only time will tell! But, the NDPA will be watching. And, there isn’t much patience out here for more of the “EOIR Clown Show!”🤡🦹🏿♂️
🇺🇸🗽⚖️Due Process Forever! Better judges 🧑🏽⚖️👩⚖️👨🏻⚖️ for a better America. And that starts (but doesn’t end) with the U.S. Immigration Courts!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber StyleKate Voigt Senior Associate Director of Government Relations AILA PHOTO: AILA
In just four years, President Trump implemented radical changes that fundamentally compromised the integrity of the immigration courts. This policy brief explains the most critical and urgent changes President Biden should make to the immigration court system to ensure fairness and impartiality.
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Download the complete policy brief at the link.
Thanks, Kate!
Great report!
I hope you have arranged to have a copy of this delivered to Judge Garland, Vanita Gupta, and Lisa Monaco. As you know better than anyone, every day the current BIA remains empowered to grossly distort and intentionally misapply the law and dish out injustice is another day of outrageous abuse for migrants and psychological harm inflicted on their representatives.
It is also essential that the folks in MPP and others applying at our borders are represented and judged according to a properly fair and generous interpretation of our asylum laws (as you point out, no more “99% denial club” assigned to Central American cases). Along with bogus “no show” rates, artificially inflated asylum denial rates have been used as key parts of the false narrative to smear and dehumanize asylum applicants at our Southern Border.
🇺🇸⚖️🗽🧑🏽⚖️👨🏻⚖️👩⚖️Due Process Forever!
Thanks again for all you and your colleagues do, and best wishes,
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”
So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.
Talk about “crimes against humanity!” ☠️🏴☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.
Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!
Make no mistake: Democracy may have survived this year, but President Biden and Vice President Harris were elected despite, not thanks to, weakened electoral systems. Together with the Democratic Congress, they now have the opportunity to implement reforms that reaffirm our nation’s promises that our country represents and works for everyone. We as Democrats must act before it is too late.
Our democratic system faces extraordinary threats today because of sustained attacks from Republican leaders who throw up roadblocks to voting and, among the worst actors, stoke the flames of white supremacy and hyper-nationalism to cling to power. There can be no clearer example than the covid-19 pandemic. The deaths of more than 450,000 people in the richest country in the world are symptomatic of a democracy in crisis and a political system that rewards cronyism over competence. Despite strong public support for the Centers for Disease Control’s work, the Affordable Care Act, and other economic justice and safety-net policies that could save lives, millions nevertheless continue to contract the disease without adequate access to health care.
No thinking person can deny that the communities of color disproportionately suffering and dying from this pandemic are also the people whose votes — and ability to hold failed leaders accountable — have been continuously suppressed.
The pandemic has been a collision of tragedy and corroded institutions, and the challenge is in how we respond. We can either engage in collective amnesia about what we have just lived through, and leave an unaccountable government in place, or we can rise to meet this moment by fixing the broken social compact. Defeating Trump was not enough. Meaningful progress on health care, racial justice and the economy requires aggressive action on voting rights, partisan gerrymandering and campaign finance.
One of the first steps must be an overhaul of the Senate filibuster, which has long been wielded as a cudgel against the needs of millions who struggle. Today, the parliamentary trick creates a more sinister threat to our nation: the ability of a minority of senators, who represent 41.5 million fewer people than the Senate majority, to block progress favored by most Americans.
Democrats in Congress must fully embrace their mandate to fast-track democracy reforms that give voters a fair fight, rather than allowing undemocratic systems to be used as tools and excuses to perpetuate that same system. This is a moment of both historic imperative and, with unified Democratic control of the White House and Congress, historic opportunity.
The agenda to restore democracy also includes passing the For the People Act to protect and expand voting rights, fight gerrymandering and reduce the influence of money in politics; the John Lewis Voting Rights Advancement Act to restore the full protections of the 1965 Voting Rights Act; and the Protecting Our Democracy Act to constrain the corruption of future presidents who deem themselves above the law. These landmark bills have broad-based support, and would have passed long ago were it not for obstructionist leaders who fear losing their own influence if the American people have more power of their own.
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The Trump GOP lies, insurrections, and blatantly false claims attempting to undermine the very clear Biden-Harris victory have been a smokescreen for the real voting problems — the unrelenting efforts of the GOP — “The Party of the New Jim Crow” — to suppress the votes of Americans of color. Read the rest of Abrams’s op-ed at the link.
And, as Abrams cogently points out, one reason for the denial, downplaying, and maliciously incompetent mishandling of the pandemic by the Trump regime was that so many of the victims were among communities of color — those they never cared about and whose humanity they continuously tried to deny and disparage. Death is a great way of disenfranchising minority voters. Not to mention a little fear and intimidation thrown in for a good measure.
There is a very clear connection between the dehumanization of asylum seekers and other migrants and the disenfranchisement of voters of color. It’s all part of “Dred Scottification” — a disgraceful practice sanctioned by none other than the GOP’s Supremes’ majority!
Our future as a nation depends on Judge Garland, Vanita Gupta, and their incoming team at DOJ “connecting the dots” — beginning with dismantling and replacing the White Nationalist nativist kakistocracy at EOIR. Immigrants’ rights are civil rights are human rights!The GOP actually “gets” that (in a purely negative way)! Will the Dems finally show that they do too!
From Justice Elena Kagan’s dissent in South Bay United Pentecostal Church v. Newsom:
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
Justice Elena Kagan Photo: Mike Ball Creative Commons License
Ruth Marcus writes about U.S. District Judge Ketanji Brown Jackson in WashPost:
. . . .
Still, Jackson, named to the district court by Obama in 2013, brings to the bench an intriguing — and for the Democratic Party’s restless progressives, attractive — piece of career diversity as well: experience as a public defender.
No current Supreme Court justice has the perspective of having been a public defender, representing indigent defendants, although several — Justices Samuel A. Alito Jr., Sonia Sotomayor and Brett M. Kavanaugh, in his role as associate independent counsel — have prosecutorial experience.
For Jackson, the daughter of two public school teachers (her father later became a lawyer), the criminal justice system has an unusually personal wrinkle as well: Her uncle was convicted of a low-level drug crime when she was a senior in high school, and was sentenced to life in prison under a draconian three-strikes law. (He had been convicted previously of two minor offenses.) He ended up receiving clemency from Obama after serving three decades.
She also brings the real-world perspective of a working mother. In a remarkably candid speech at the University of Georgia in 2017, Jackson described the challenges she encountered juggling private practice at a major law firm, marriage to a surgeon and motherhood to two young daughters.
“I think it is not possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she observed. “The hours are long; the workflow is unpredictable; you have little control over your time and schedule; and you start to feel as though the demands of the billable hour are constantly in conflict with the needs of your children and your family responsibilities.” How refreshing to hear from a self-confessed non-Superwoman.
. . . .
But a more obscure ruling, involving William Pierce, a deaf D.C. man who was imprisoned for 51 days after a domestic dispute, may offer more insight into Jackson’s belief in law as a mechanism for achieving justice. Corrections officials did nothing to accommodate Pierce’s disability, as the law requires, ignoring his repeated requests for a sign-language interpreter.
Jackson assailed prison officials’ “willful blindness regarding Pierce’s need for accommodation.” She said it was “astonishing” for D.C. to claim that it had done enough, when “prison employees took no steps whatsoever” to figure out how to help him. And she took the unusual step of ruling for Pierce even before trial.
You can learn a lot about a judge by the way she handles the biggest-profile cases, involving those at the highest levels of government. But perhaps the more revealing test is how she applies the law to help those with the least power and the greatest need for justice.
U.S. District Judge Ketanji Brown Jackson Washington D.C. Official Photo Creative Commons License
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Read the full articles at the above links. “Willful blindness” and intentional abuses intended to “dehumanize” are daily occurrences in our warped and broken “immigration justice system” as almost any immigration/human rights/civil rights lawyer could tell you. It just operates below the radar screen, on the border, or in foreign countries (to which vulnerable humans seeking legal refuge are arbitrarily and capriciously “orbited”) where the very human trauma, torture, sickness, desolation, despair, and death are “out of sight, out of mind” to most Federal Judges and Justices.
Yes, eventually journalists and historians will document for posterity the disastrous human rights abuses in which the Federal Judiciary is complicit. But, by then it will be far too late for those who have suffered and died while those in black robes shirked their legal and moral duties!
Judge Jackson understands exactly what’s missing from today’s all too often elitist, non-diverse, non-representative Federal Judiciary (including much of the Immigration Judiciary) who are tone-deaf to, and insulated from, responsibility for the human trauma and injustice caused by their bad decisions.
Additionally, I can assure Justice Kagan that vulnerable refugees and asylum seekers (including children) have died and unnecessarily suffered lifetime trauma from the Supremes’ willful failure to enforce the Constitution against overt Executive tyranny in cases involving the “Remain in Mexico” (“Let ‘Em Die In Mexico”) Program, return of asylum seekers to torture and death with no due process whatsoever, and the “Muslim Ban.”
Indeed, the Supremes’ majority’s abdication of responsibility in the latter case led directly to Trump’s eventual insurrection against the Capitol. He was assured early on by Roberts and others that he was above the Constitution, uncountable, and exempt from normal conventions governing human decency and treatment of the most vulnerable among us in the 21st Century. I/O/W, “Dred Scottification” of the “other”— a 21st Century “Jim Crow Regime” — was A-OK with the GOP Supremes’ majority “forever insulat[ed] . . . from responsibility for [their] errors.”
Today in particular, our nation still struggles with the sense of impunity and unaccountability improperly conferred by a dilatory Supremes’ majority on their party and its leader. Insurrection, violence, attempted overthrow of democracy — it’s all “no problem” to a tone-deaf Supremes’ majority unconcerned with the fate of our democracy.
After all, the Trump’s magamoron rioters weren’t storming their marble halls — just those of the supposedly co-equal branch across the street. But, what might have happened if they had actually stood up against Trump? He might have identified them as “the enemy” and sent his rioters their way! Worth thinking about, Oh Cloistered Ones far removed from the pain and suffering you help cause and countenance!
A better judiciary 🧑🏽⚖️👨🏻⚖️👩⚖️ for a better America! Bring on the “practical scholars” and those with actual experience representing the mostly vulnerable among us (asylum seekers are a prime example) in court.
A recent report from the Urban Institute found that more than 1 in 6 adults in immigrant families reported avoiding a government benefit program or other help with basic needs last year because of immigration concerns. This chilling effect was so persistent that households where every foreign-born member had already been naturalized said they’re avoiding benefits. Just to be safe.
Despite an ongoing national crisis with record levels of illness, financial stress and hunger.
“More than once, pediatricians have told us they’ve had children come in so sick and so malnourished that [Child Protective Services] had been called on these families,” said Cheasty Anderson, director of immigration policy and advocacy at Children’s Defense Fund-Texas. Struggling parents believe they’re “on the horns of this dilemma,” she said. They think they must choose between accepting food and medical assistance for their children — or face possible deportation, and thus separation from their children.
That’s what the Trump administration has conditioned them to believe.
Given trends so far — particularly those declines in childhood immunizations — advocates worry that the “public charge” rule might discourage immigrants from getting themselves or their children vaccinated against covid-19. Which would affect the well-being of not just these immigrant families, of course, but their surrounding communities as well. Some advocates have expressed frustration that the Biden administration hasn’t immediately rescinded the rule. Formal repeal is likely a ways off, assuming the administration goes through the usual (cumbersome, protracted) rulemaking process.
But even if the order that Biden signed this week was really more about marketing than action, that pro-immigrant P.R. is valuable. After all, “most of the original damage was done by messaging,” as the Center for Law and Social Policy’s executive director, Olivia Golden, told me. It can, and should, be undone by the same means.
If we want immigrant families to stay healthy — and keep their nonimmigrant neighbors healthy, too — the government needs to put better policies on the books. But it needs to rebuild immigrants’ trust in those policies, too. That part may ultimately be harder.
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Read Catherine’s full op-ed at the link.
Using government resources to undermine public confidence in government. Could it get any stupider and more evil?
But, let’s not forget that the bureaucratic kakistocracy at DHS, DOJ, and other agencies happily carried out and promoted the Trump/Miller bogus, racist, anti-immigrant narratives. That’s going to make it challenging for Secretary Mayorkas and incoming AG Garland to change the policies, change the messaging (if you want to see how brutally corrupt and manipulative the DHS “PR Kakistocracy” was, check out the highly acclaimed documentary “Immigration Nation”), and change the attitudes and the reality at the “retail level” — the DHS field offices and the Immigration Courts.
But it’s a challenge they must meet and conquer — for the sake of our nation.
Also, it’s worth remembering that the Supremes’ GOP majority dishonestly bent the rules to interfere with lower Federal Court rulings that had properly blocked this invidious, White nationalist, nativist attack on American communities — targeting communities of color and low-income communities. Just another example of how the Supremes’ elitist right wing majority operates outside reality (the factual record of comments from experts opposing this bogus “rule” was simply overwhelming and basically ignored by the Trump regime and the Supremes’ majority) and without regard or understanding of the human and public policy consequences of their skewed “Dred Scottifying” rulings. They are also above accountability, which makes their abuse of the most vulnerable among us even more disgusting and cowardly.
I think it’s highly unlikely that we’d see the same tone deaf misapplication of the law if it were the Justices’ kids, grandkids, neighbors, and friends unnecessarily suffering from illness and malnutrition aggravated by racist government policies. No more Justices and Federal Judges who have spent their adult lives studiously ignoring the rights and problems of those struggling to get by in a society where the rules are designed to protect the White ruling class rather than all persons living here.
It’s very clear that for GOP Justices, most of the time, only some lives and rights matter and are worth protecting. The rest of humanity can “go pound sand” as far as they are concerned.
For Pete’s sake, guns and corporate entities get more protection from the Roberts’ Court than do asylum seekers whose lives are at stake! As Justice Sotomayor says: “This is not justice.” The question remains of why we have Supremes who all too often promote injustice and fail to resist evil?
While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.
The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.
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Read the rest of the interview at the link.
The disgraceful mess that Trump and McConnell made out of our Federal Judiciary has been a constant theme here @ Courtside over the past four years!
What’s missing from this interview are these fundamental realizations that those of us in the world of immigration and human rights know well but seem to escape most of the others looking to fundamentally change and improve the Federal Judiciary:
There are few things that go on in the Federal Judiciary, at any level, as important to human lives and the future of our nation as what takes place in Immigration Court every day;
The Immigration Courts have hit stunning new levels of dysfunction, incompetence, and intentional injustice over the past four years — they are truly an ongoing national disgrace (“America’s Star Chambers” or “Clown Courts”🤡) and a stain on the humanity of our nation, as well as an abomination that threatens to collapse our entire justice system;
Immigration law and “weaponized” Immigration Courts have been the key to the Trump regime’s attack on American democracy and our Constitutional institutions culminating in the deadly Capitol insurrection;
The Biden Administration has complete authority to fix the Immigration Courts now — no waiting for Justices or Judges to retire, “negotiating with Mitch and the Federalist Society,” waiting for the scheduling of Senate Confirmation hearings, or humoring home state Senators;
Some of the lawyers and advocates who led the legal fight to preserve American democracy over the past four years would be outstanding choices for the Immigration Judiciary (as well as the Article III Judiciary — there is no shortage of diverse progressive talent with “real life retail experience” out here in the NDPA, Russ);
A well-functioning, diverse, independent Immigration Judiciary would not just help advance and enforce the Administration’s progressive, humane, due-process-focused immigration and human rights policies, but also should become a model of “best practices” for the Article III Judiciary, and an extraordinary source of well-trained, experienced, progressive, “practical scholar jurists” for filling positions in the Article III Judiciary;
Better understanding of, and commitment to, humanely and properly administering immigration and human rights laws by Federal Judges — and the total elimination of “Dred Scottification of the other” under law — is the absolutely essential “now-missing key” to achieving racial justice and social justice in America;
America can’t afford the astounding absence of true immigration scholarship, human understanding of immigrants, practical decision making and problem solving, and an overriding commitment to due process for all persons, including asylum seekers and migrants, that now infects the Federal Court system at all levels;
Those seeking to undermine American democracy will continue to exploit the Federal Judiciary’s overall lack of understanding of immigration and human rights laws and their willing abrogation of Constitutional due process and basic concepts of fundamental fairness and human dignity for some of the most vulnerable persons among us — we must fix this problem before it destroys us!
In his first days in office, President Joe Biden has made immigration a key priority for his administration, seeking to distinguish himself from another “deporter in chief,” as activists once called President Barack Obama.
He has issued a series of executive actions aimed at dismantling the Trump administration’s nativist legacy, unveiled an ambitious legislative proposal for immigration reform, begun to roll back a program that has left asylum seekers trapped in Mexico, and sought to enact a 100-day pause on deportations.
On Tuesday, he issued another three executive orders that create a task force to reunite families separated under President Donald Trump and implement measures to remove obstacles to noncitizens seeking to naturalize, enter the US on visas, and obtain asylum or other humanitarian protections. White House press secretary Jen Psaki said to expect additional announcements, including an expansion of the US refugee program, going forward.
For immigrant communities, those changes can’t come soon enough. Democrats have long promised to create a more just immigration system, and Biden’s initial actions have built confidence among some immigrant advocates that he intends to finally deliver, though they wish he would act even more quickly on behalf of people whose lives are hanging in the balance.
The task before Biden is immense. Immigrant communities expect him not just to revert to the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention, but to improve on it. And while Obama failed to pass comprehensive immigration reform or even a narrow bill offering legal protections to “DREAMers” who came to the US without authorization as children, activists see immigration reform as an imperative and are counting on Biden to pass it by whatever means possible.
Though Biden has largely stood by his record as vice president, he has acknowledged that the Obama administration stumbled on immigration, particularly with regard to mass deportations.
“We took far too long to get it right,” Biden told Univision last February. “I think it was a big mistake.”
Since Obama was in office, the public has become more favorable to immigration, in part as a reaction to the shock-and-awe tactics behind the Trump administration’s high-profile travel ban and family separation policies. The Democratic Party is also more unified on immigration, a topic they once regarded as politically radioactive.
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Get the rest of Nicole’s outstanding and highly readable analysis at the link!
As she points out, a major challenge for the Biden-Harris team, Secretary Mayorkas, and incoming AG Garland will be dealing with a totally dysfunctional immigration bureaucracy at DHS and DOJ that often eagerly engaged in and helped promote “crimes against humanity” and unconstitutional dehumanization of migrants under the bogus claim to be “upholding the rule of law.” What absolute poppycock!
Vanita Gupta Nominee for Associate AG Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseKristin Clarke Nominee for Assistant AG, Civil Rights Photo: NAACP, Creative Commons License
Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America.Sam Levine reports for The Guardian.
On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
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Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?
Here are the “keys to success:”
Immigrants’ rights are human rights;
Human rights are civil rights;
There can be neither racial justice nor equal justice in America until migrants are not only fully recognized as “persons” under our Constitution, but actually treated as such (as opposed to the active “dehumanization” and “Dred Scottification” of migrants and persons of color by the Trump regime and the GOP majority on the Roberts’ Court);
You can’t possibly “win the game” with the same players who “batted for the White Nationalists” over the past four years.
And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.”
So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!
On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.
Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.
Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.
That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.
Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.
That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness.
And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!
I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army(“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.”
Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.
On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.
