Judicial Review – Page 35 – immigrationcourtside.com

SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!

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

Laura Lynch @ AILA reports:

FYI – On Friday, August 21st, Democratic members of the Senate Judiciary Committee sent a letter to the GAO requesting an investigation into the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

From: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Sent: Friday, August 21, 2020 3:24 PM
To: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Subject: Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

FOR IMMEDIATE RELEASE

August 21, 2020
Contact: Rich Davidson

(202) 228-6291 (press office)

Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

Trump attacks on immigration system raise serious concerns about safety during pandemic

More than 1,000 people in immigration detention have tested positive for COVID-19, and five have died

Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), and Mazie Hirono (D-HI) led a Senate request to the top congressional watchdog to investigate the practices of the Executive Office of Immigration Review (EOIR) under President Trump, including its management of immigration courts during the current COVID-19 pandemic. In a letter to the Government Accountability Office (GAO), the senators raise concerns first voiced to the Justice Department in February about mismanagement of the EOIR under Attorney General William Barr, as well as the Trump administration’s regulatory and procedural changes at the Justice Department that have curtailed the independence of immigration courts. The administration’s mismanagement of and meddling with the immigration courts – done in the name of “efficiency” – are particularly troubling during the COVID-19 pandemic, when an overburdened system can lead to unsafe practices that place individuals at grave risk and jeopardize due process, the senators write to the GAO.

“While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures, legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens,” the senators write. “In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous.”

Joining Whitehouse, Durbin, and Hirono in the request to the GAO are Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Kamala Harris (D-CA).

The senators continue in their letter to GAO, “Immigration courts are now reopening around the country, including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video, participants often must appear in person or not at all. Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19. Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits. As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.”

The Trump administration’s management of the immigration system has come under close scrutiny during the COVID-19 crisis. Reports suggest immigrants face a range of unsafe conditions and practices as a result of Trump administration management decisions, including the detention of children using unaccountable private contractors. More than 1,000 people in immigration detention have tested positive for COVID-19, and five people have died.

Full text of the senators’ request is below. A PDF copy is available here.

August 21, 2020

The Honorable Gene Dodaro

Comptroller General of the United States

United States Government Accountability Office

441 G Street, NW

Washington, DC 20548

Dear Mr. Dodaro:

We are writing to request that the Government Accountability Office (GAO) analyze and audit the Executive Office of Immigration Review’s (EOIR) practices with respect to the hiring, training, and evaluation of immigration judges and staffing of immigration courts, as well as their management of these courts during the current COVID-19 pandemic. GAO’s insight will help Congress determine if additional legislation is necessary to address these issues, as well as inform appropriations decisions.

In February, we wrote to Attorney General William Barr to express our concern that the Trump administration is undermining the independence of immigration courts. As outlined in that letter, attached, we are concerned about the mismanagement of EOIR and troubled by regulatory and procedural changes within the Department of Justice (DOJ) that have curtailed the independence of immigration courts. Although more than six months have passed, we have not received a response from DOJ or EOIR. Instead, in that time, EOIR has continued to use its administrative powers to put its thumb on the scale of justice. Most recently, EOIR attempted to buy out all nine career Board of Immigration Appeals judges who had been hired in prior administrations.[1] When the judges refused, they were reassigned to new roles.[2]

While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures,[3] legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens. In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous. While EOIR initially postponed all hearings for non-detained individuals, proceedings for detained noncitizens continued to move forward unabated.[4] Immigration courts are now reopening around the country,[5] including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video,[6] participants often must appear in person or not at all.[7] Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19.[8] Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits.[9] As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.[10]

EOIR’s facially-neutral policies during the COVID-19 pandemic have raised systemic due process concerns.[11] Immigration judges, staff, and litigators have also expressed concerns about the health risks to them and the litigants who appear in immigration courts.[12] Given GAO’s prior work on immigration courts,[13] it is uniquely suited to conduct an audit and analysis of EOIR. We ask GAO to look into the following questions:

What criteria does EOIR use to hire immigration judges and Board of Immigration Appeals judges? What criteria does EOIR use to determine the number of deputy chief and other management positions for judges, and what criteria does EOIR use to hire for these positions? To what extent does EOIR assess its immigration judge and Board of Immigration Appeals judge hiring efforts? What, if any, challenges has EOIR encountered in recruiting and retaining immigration judges and Board of Immigration Appeals judges? How, if at all, has it addressed them?

How does EOIR determine targets for immigration court and Board of Immigration Appeals case completion time frames and caseloads?

To what extent has EOIR assessed its immigration court and Board of Immigration Appeals staffing needs? What have any such assessments shown? How do current immigration court staffing levels compare to staffing needs EOIR has identified?

How does EOIR assess immigration and Board of Immigration Appeals judge performance?

To what extent has EOIR assessed immigration judge and Board of Immigration Appeals judge training needs? What have any such assessments shown?

How has EOIR’s use of video teleconferencing changed since GAO last reported on it in 2017? What, if any, data is EOIR collecting on hearings using video teleconferencing and the effects of that technology on hearing outcomes?

How do EOIR’s practices compare to other administrative courts?

How, if at all, is EOIR addressing the backlog of cases that were postponed in response to the COVID-19 pandemic?

How, if at all, has EOIR’s response to COVID-19 affected noncitizens’ ability to locate and meet with counsel, obtain and present evidence in their cases, and appear in court? To what extent have the challenges of COVID-19 impacted the number of in absentia orders issued by immigration courts?

Please keep our offices apprised of your review. Thank you for your attention to this matter.

###

[1] Tanvi Misra, DOJ ‘reassigned’ career members of Board of Immigration Appeals, CQ Roll Call, June 9, 2020, available at https://www.rollcall.com/2020/06/09/doj-reassigned-career-members-of-board-of-immigration-appeals/.

[2] Id.

[3] Jeff Sessions, Attorney General, U.S. Dep’t of Justice, Remarks to the Executive Office for Immigration Review Legal Training Program (Jun. 11, 2018), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-executive-office-immigration-review-legal.

[4] Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic (last updated Aug. 19, 2020); American Immigration Lawyers Association, “AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic,” https://www.aila.org/eoir-operational-status (last visited Aug. 19, 2020).

[5] American Immigration Lawyers Association, supra note 4.

[6] Id.

[7] Emergency Mot. for a Temporary Restraining Order, Nat’l Imm. Project of the Nat’l Lawyers Guild v. Exec. Office of Imm. Review, No. 1:20-cv-00852-CJN, at 12-18 (D.D.C. Apr. 8, 2020), available at https://www.aila.org/advo-media/press-releases/2020/temporary-restraining-order-requested-to-stop.

[8] Id. at 15-16.

[9] Monique O. Madan, Despite national shortage, immigration lawyers required to bring their own medical gear, Miami Herald, Mar. 22, 2020, https://miamiherald.com/news/local/immigration/artcile241414486.html.

[10] Id. 12-15, 25-26.

[11] Betsy Woodruff Swan, Union: DOJ deportation appeals workers fear overcrowding, Politico, Apr. 23, 2020, https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075 (“That is the feeling the [EOIR] employees have, that [EOIR’s COVID response is] definitely connected to this administration and their desperation to be able to boast about how great they’re doing on their deportation numbers.”).

[12] Nat’l Assoc. of Immigration Judges, Am. Assoc. of Immigration Lawyers, & Am. Fed. Of Gov’t Employees Local 511, Position on the Health and Safety of Immigration Courts During the COVID-19 Pandemic, Mar. 15, 2020, available at https://naij-usa.org/images/uploads/newsroom/2020.03.15.00.pdf.

[13] See, e.g., Gov’t Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (June 2017).

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Basically, confirms what AILA, NAIJ, our Round Table, NGOs, and much of the media have been saying for a long time now! Obviously, the Dems lack the power in the Senate to take effective action to eliminate EOIR and replace it with an independent Article I Court, at present. Hopefully, that will be remedied in November.

In the meantime, what’s the excuse of the Article IIIs for continuing to allow this mockery of our Constitution and parody of justice to continue to daily inflict abuse on their fellow humans?

Due Process Forever!

PWS

08-25-20

🏴‍☠️☠️🤮⚰️🆘AMERICA’S SHAME — NATIONAL DISGRACE – SYSTEMIC INSTITUTIONAL FAILURE: From Supremes Who Abandoned Their Key Precedent In Cardoza-Fonseca, To A 5th Cir. Court Of Appeals That Shirked Its Duty To Protect Refugees, To A “Don’t Rock The Boat” BIA That Failed To Enforce Uniformity, To Unqualified & Biased Immigration “Judges” Who Created Illegal, “Asylum-Free Zones,” The U.S. Asylum System Was In Deep Trouble Even Before Trump – Under Trump, It Has Become A “Killing Floor” Programmed To Intentionally Deny & Deport Deserving Refugees To Death, Torture, Or Grotesque Mistreatment, As Indolent, Cloistered Article IIIs, Unwilling To Dig In & Stop The Slaughter Look On!

https://www.sandiegouniontribune.com/news/immigration/story/2020-08-23/who-gets-asylum-even-before-trump-system-was-riddled-with-bias-and-disparities

An asylum seeker’s chances at protection hinge on numerous factors that often seem arbitrary — from location to nationality to individual judge assigned — according to a Union-Tribune analysis of immigration court records
By KATE MORRISSEY,
LAURYN SCHROEDER
AUG. 23, 2020
5 AM
For the world’s most vulnerable, protection in the United States has all but disappeared.
Wait times for asylum seekers at the U.S.-Mexico border that already seemed indefinite now seem impossible. Families struggle to find food and shelter to outlast a pandemic order with no end date.
Those who cross north are sent back to Mexico in a matter of hours — or even put onto planes back to the countries from which they fled — without any opportunity to explain why they came.
In its response to COVID-19, the Trump administration achieved what it long sought, a shutdown of the U.S. asylum system. And with new regulations introduced this summer, the administration has moved to squeeze out any real chance at refuge in case the pandemic order is lifted.
But even before the current president began his campaign against asylum in the United States, people often struggled to win protection — no matter how strong their cases appeared to be.
In its 40-year history, the system has chronically fallen short of its promise of safety.
RETURNED: PART II
The second in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The Trump administration has used statistics about grant rates to justify closing off access to asylum, saying that those who lose their cases are illegitimate asylum seekers.
The facts show a different story: Thousands of people turned away based not on the merits of their cases, but on the capriciousness of a system so riven with inequity that many outcomes seem little more than arbitrary.
A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.
. . . .

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Read the rest of this eye-opening (for those not familiar with this broken, biased, and beyond dysfunctional system) article at the above link.

There can be no excuse for the “horror chamber” that this already broken, battered, and unfair system has devolved into. It will take genuine changes in expertise, attitude, courage, and intellectual integrity across all three branches of Government to get this system functioning in a fair, legal, and constitutional manner consistent with due process and our international obligations.
It also will require much better, more educated, more courageous, more practical, and more intellectually honest judges from the Immigration Courts (which must become independent from the Executive) all the way up to and including the Supremes.

Better judges for a better America! Life tenure means it won’t happen overnight. But, the process needs to begin now for our nation to survive and prosper!

We can’t achieve equal justice for all with so many judges who don’t believe in it, don’t have expertise in and a commitment to human rights, and don’t have the guts to stand up for the legal, constitutional, and human rights of all individuals coming before our justice system. That specifically includes the “most vulnerable among us” – asylum seekers and other of our fellow humans whose humanity and right to live seem to fall below the “radar screen” of the current Supremes’ majority!

Due Process Forever! “Dred Scottification” and complicity, never!

PWS
08-24-20

🖕 BIRDLAND: Wolfman, USCIS “Flip Off” Supremes, Federal Courts, With A “Dumbed Down” Version Of DACA Resumption!

Here’s the USCIS Directive:

From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com]
Sent: Monday, August 24, 2020 8:19 AM
To: Dan Kowalski
Subject: USCIS Implements DHS Guidance on DACA

U.S. Citizenship and Immigration Services today provided guidance on how it will implement Acting Secretary of Homeland Security Chad Wolf’s July 28 memorandum regarding the Deferred Action for Childhood Arrivals (DACA) policy.

Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.

USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

Travel to support the national security interests of the United States;

Travel to support U.S. federal law enforcement interests;

Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or

Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Please do not reply to this message. See our Contact Us page for phone numbers and e-mail addresses.

Notably, the plaintiffs have already filed a contempt motion in the DACA litigation: https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/daca-advocates-file-contempt-motion-against-dhs

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

The actions of Wolfman, his cronies, and the Government lawyers who carry their water are obviously those of lawless individuals who neither fear nor expect accountability. And, why should they?

After more than three years of unrelenting corruption, bad faith, lies, misrepresentations, and overt illegal and unconstitutional actions motivated by racism and xenophobia, just what “consequences” have Administration officials carrying out the Trump/Miller program of “nullification” and “institutionalized racism” suffered? Not many, that I can see, beyond an inordinate number of lower Federal Court defeats that they ignore or avoid in bad faith. Occasionally, certainly nowhere close to as often as they deserve, the regime receives a relatively mild rebuke from the Supremes. But, for the most part, the resulting orders are largely toothless and merely suggest ways in which they can be avoided or “worked around” without consequences.

We’ll see if this time is different. But, I wouldn’t count on it!

PWS

08-24-20

🏴‍☠️☠️👎🏻🤡🎪🤮KAKISTOCRACY WATCH: How Do You “Dumb Down” An Already Dysfunctional Organization? — Just Ask EOIR! — Latest Ludicrous Regs Proposals Show Why America Would Be Better Off Without Clown Courts Putting On Expanded “Freak Show” Under The Big Top!

Read the “advance copy of proposed regulations” scheduled to be published in the Federal Register on August 26, 2020 here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-18676.pdf

WARNING: Any resemblance to a court of law or part of the justice system contained in the document at the link is purely coincidental.

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The short-term solution is actually simple: The Article IIIs need to strike this system down as a patently ridiculous denial of 5th Amendment Due Process. All immigration proceedings should be conducted de novo before U.S. Magistrate Judges, with review by District Judges and Circuit Courts, until Congress acts to establish an Immigration Court System that complies with our Constitution!

Due Process Forever!

PWS

08-23-20

JULIA AINSLEY & JACOB SOBOROFF @ NBC NEWS REPORT ON WHITE NATIONALIST WHITE HOUSE: Neo-Nazi Stephen Miller & Cabinet Racists Voted To Abuse Brown Children: “If we don’t enforce this, it is the end of our country as we know it,” Said The New American Gruppenfuhrer!” — “Any moral argument regarding immigration ‘fell on deaf ears’ inside the White House, said one of the officials.”

Julia Edwards Ainsley
NBC News Correspondent

https://apple.news/AZFgY4X7BQsaKSITqteCbIg

Trump cabinet officials voted in 2018 White House meeting to separate migrant children, say officials

“If we don’t enforce this, it is the end of our country as we know it,” said Trump adviser Stephen Miller, say officials present at a White House meeting.

by Julia Ainsley and Jacob Soboroff | NBC NEWS

WASHINGTON — In early May 2018, after weeks of phone calls and private meetings, 11 of the president’s most senior advisers were called to the White House Situation Room where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.

Trump’s senior adviser, Stephen Miller, led the meeting and, according to the two officials, he was angry at what he saw as defiance by Department of Homeland Security Secretary Kirstjen Nielsen.

It had been nearly a month since then-Attorney General Jeff Sessions had launched the Trump administration’s “zero tolerance” policy, announcing that every immigrant who crossed the U.S. border illegally would be prosecuted, including parents with small children. But so far, U.S. border agents had not begun separating parents from their children to put the plan into action, and Miller, the architect of the Trump administration’s crackdown on undocumented immigrants, was furious about the delay.

Those invited included Sessions, Nielsen, Health and Human Services Secretary Alex Azar and newly installed Secretary of State Mike Pompeo, according to documents obtained by NBC News.

Nielsen told those at the meeting that there were simply not enough resources at DHS, nor at the other agencies that would be involved, to be able to separate parents, prosecute them for crossing the border and return them to their children in a timely manner, according to the two officials who were present. Without a swift process, the children would enter into the custody of Health and Human Services, which was already operating at near capacity.

Two officials involved in the planning of zero tolerance said the Justice Department acknowledged on multiple occasions that U.S. attorneys would not be able to prosecute all parents expeditiously, so sending children to HHS was the most likely outcome.

As Nielsen had said repeatedly to other officials in the weeks leading up to the meeting, according to two former officials, the process could get messy and children could get lost in an already clogged system.

Miller saw the separation of families not as an unfortunate byproduct, but as a tool to deter more immigration. According to three former officials, he had devised plans that would have separated even more children. Miller, with the support of Sessions, advocated for separating all immigrant families, even those going through civil court proceedings, the former officials said.

While “zero tolerance” ultimately separated nearly 3,000 children from their parents, what Miller proposed would have separated an additional 25,000, including those who legally presented themselves at a port of entry seeking asylum, according to Customs and Border Protection data from May and June 2018.

That plan never came to fruition, in large part because DHS officials had argued it would grind the immigration process to a halt. But after Sessions’ announcement that all families entering illegally would be prosecuted, the onus had fallen on DHS to act.

At the meeting, Miller accused anyone opposing zero tolerance of being a lawbreaker and un-American, according to the two officials present.

“If we don’t enforce this, it is the end of our country as we know it,” said Miller, according to the two officials. It was not unusual for Miller to make claims like this, but this time he was adamant that the policy move forward, regardless of arguments about resources and logistics.

No one in the meeting made the case that separating families would be inhumane or immoral, the officials said. Any moral argument regarding immigration “fell on deaf ears” inside the White House, said one of the officials.

“Miller was tired of hearing about logistical problems,” said one of the officials. “It was just, ‘Let’s move forward and staff will figure this out.'”

Frustrated, Miller accused Nielsen of stalling and then demanded a show of hands. Who was in favor of moving forward, he asked?

A sea of hands went up. Nielsen kept hers down. It was clear she had been outvoted, according to the officials.

In the days immediately following the meeting, Nielsen had a conversation with then-CBP Commissioner Kevin McAleenan inside her office at the Ronald Reagan Building, and then signed a memo instructing DHS personnel to prosecute all migrants crossing the border illegally, including parents arriving with their children.

. . . .

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Read the rest of the report, detailing the full extent of this outrageous, illegal, and immoral conduct by corrupt high-level officials of our Government, at the link. This is what your tax dollars have been used for, while legitimate needs like coronavirus testing, disaster relief (see, Iowa), mail delivery, naturalization services, unemployment relief, etc., go unmet!

So, separated families and children continue to suffer, much of the harm and trauma irreparable and life-defining. This “policy” was so clearly illegal and unconstitutional that DOJ attorneys conceded its unconstitutionality in Federal Court.

However, in an ethics-free DOJ, those same lawyers falsely claimed that there was no such policy. Rudimentary “due diligence” on their part, required by professional ethics, would have revealed that their representations on behalf of corrupt institutional “clients” were false.

The article also confirms the complicity of Kevin “Big Mac With Lies” McAleenan in gross, intentional human rights violations. Courtside exposed “Big Mac” long ago!

While the victims continue to suffer, Miller, Sessions, Nielsen, Big Mac, and other cowards who planned and carried out these “crimes against humanity,” directed at some of the most vulnerable humans in the world, remain at large. Some, like Miller, actually remain on the “public dole.” Likely, so do the DOJ lawyers who unprofessionally defended and helped obscure this misconduct in Federal Court.

It’s also worth examining the role of U.S. Magistrate Judges and U.S. District Judges along the southern border, most of whom turned a blind eye to the transparent racial and political motives, not to mention the grotesque misallocation of public resources, driving Sessions’s “zero tolerance” misdirection of scarce prosecutorial resources from serious felonies to minor immigration prosecutions.

As I’ve been saying, “Better Federal Judges for a better America!” And, better Federal Judges start with removal of the Trump regime as well as the ousting of “Moscow Mitch” and the GOP from Senate control.

Will there ever be accountability? Our national soul and future might depend on the answer!

Had enough wanton cruelty, neo-Nazism, corruption, illegality, immorality, cowardice, lies, false narratives, racism, stupidity, and squandering of tax dollars on nativist schemes and gimmicks? Get motivated and take action to get our nation back on track to being that “City upon a Hill” that the rest of the world used to admire and respect!

This November, vote like your life and the very future of humanity depend on it! Because they do!

PWS

08-21-20

CHANNELING COURTSIDE: Billy The Bigot’s Bias, Lies, & Absurdist “Legal Arguments” Have Tanked The DOJ’s Credibility With U.S. Courts – “The problem with bypassing professionals and norms is that the decisions you make instead are often transparently foolish, or appear rigged to achieve an unprincipled or corrupt result,” says WashPost Op-Ed – So, Why Does Billy B Still Have A Law License?

https://www.washingtonpost.com/opinions/2020/08/18/justice-departments-extreme-legal-arguments-are-costing-it-court/

Opinion by

George T. Conway III and

Lawrence S. Robbins

August 18, 2020 at 5:12 p.m. EDT

Lawrence S. Robbins is an appellate and trial lawyer at Robbins Russell. George T. Conway III is a lawyer and an adviser to the Lincoln Project, an anti-Trump super PAC. The writers both submitted friend-of-the-court briefs opposing the government’s motion in the Flynn case.

If there’s one thing you can say about President Trump and his administration, it’s that nothing is regular except the irregular, which has had myriad damaging consequences for the nation. And it’s had particularly adverse consequences for the federal government’s ability to defend itself in court.

The latest example comes in the criminal case against Trump’s first, short-tenured national security adviser, Michael Flynn. He pleaded guilty — not once but twice — to charges that he had lied to FBI agents during an interview about his conversations with senior Russian officials during the presidential transition. Despite Flynn’s admissions of guilt, Attorney General William P. Barr filed a motion asking that the case be dismissed — and supporting Flynn’s effort to have that done without even a hearing before the district judge.

Flynn won before an appeals court panel. But when the full court of appeals heard arguments on Flynn’s petition, the judges couldn’t have seemed more bewildered at the Trump administration’s position. The government argued that the district judge couldn’t inquire into the government’s reasons for seeking dismissal even if he’d seen the prosecutor take a bribe, in open court, in exchange for dismissing the case.

The Trump administration has been saying things like that a lot lately — trying to stretch the law in ways that undermine its remaining credibility. It argued that a sitting president’s accountants and bankers can’t be subpoenaed for his personal records during his term in office by either a state grand jury or, without meeting an impossibly high burden, by Congress. It argued that the president’s close aides can’t be called to testify before a congressional committee investigating presidential misconduct. The least trustworthy administration in decades, if not ever, keeps arguing: “You’ve just got to trust us.”

Lawyers have a phrase for the government’s saying “Trust us.” It’s called the “presumption of regularity.” The presumption of regularity means that courts should presume that government officials acted through a “regular” process: that it carefully vetted its policy and scrupulously examined relevant legal precedents.

But, as its name suggests, the presumption of regularity rests on the premise that the government is functioning in a regular way. And the Trump administration is anything but regular. Following the cues of a chief executive who despises what he calls the “deep state,” administration officials have cut corners, displaced career professionals, exiled dissenters and abandoned institutional norms — in short, circumvented the very processes that justify the presumption of regularity in the first place.

The chickens have now come home to roost. Whether they say so explicitly or not, courts have been dispensing with the presumption of regularity. The best example: In the litigation over the 2020 Census, the Supreme Court held that Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the census form was arbitrary and capricious. The reason? “Altogether,” Chief Justice John G. Roberts Jr. wrote, “the evidence does not match the explanation the secretary gave for his decision.” That’s just a polite lawyer’s way of saying Ross lied.

Examples of the administration’s disrespect for regularity are legion, and not just confined to litigated matters. Barr has acted as a virtual one-man band of irregularity: He forced the U.S. attorney in Washington, Jessie K. Liu, out of her job, thereby enabling him to countermand former special counsel Robert S. Mueller III’s sentencing recommendation for Roger Stone. And Barr gave a transparently false account of the Mueller report in the week before it was released to the public.

. . . .

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

Read the rest of the op-ed at the above link.

Perhaps the most disturbing thing is that Billy the Bigot actually “runs” a so-called “court system” — the U.S. Immigration Court — that has life or death authority over some of the most vulnerable individuals in our society, indeed in the world! How this stunning violation of both the Fifth Amendment and fundamental human decency (not to mention basic principles of competent management and good governance) continues to grind humanity into a grisly mess 🤮 of human misery ☠️ in plain sight every day is beyond me!

Almost everything in this “spot on” op-ed echoes “Courtside.” I have consistently criticized the irresponsibility and the gross dereliction of Constitutional duty by a Supremes majority that all too often treats Trump’s patently false, racist, xenophobic, and invidious immigration, refugee, and asylum policies as the actions of a “normal Executive” when Trump is nothing of the sort.

Nor does he even claim to be! He ran on overtly racist and hate-driven policies and has promoted racist tropes and lies about immigrants at every turn. Yet, the Supremes often pretend that there is some “legitimate basis” for clearly illegitimate policies and abrogation of important laws without the involvement of Congress and of Constitutional protections without any reasonable, fact-based justification.

If the “chickens have come home to roost” for the corrupt Trump DOJ, so will they eventually come home to roost for Supremes who have disingenuously and intentionally looked the other way and have enabled, or in some cases even encouraged, Trump’s racist and lie-driven dismantling of American democracy and “Dred Scottification” of “the other.” Life tenure protects the jobs of derelict Federal Judges. But, it won’t protect their reputations from the truth of history.

This November, vote like your life and the future of America depend on it! Because they do!

PWS

08-19-20

‍‍‍🏴‍☠️☠️⚰️🤮KAKISTOCRACY WATCH: BIA Continues To Get Pummeled For Absurdist Anti-Asylum “Jurisprudence” – Are The Article IIIs Finally Catching On? – If So, Why Does The BIA Still Exist? – Jeffrey S. Chase Analyzes Latest BIA Debacle From the 9th Cir. — Akosung v. Barr

https://www.jeffreyschase.com/blog/2020/8/16/9th-cir-to-bia-hiding-in-fear-is-not-reasonable-relocation

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW
9th Cir. to BIA: Hiding in Fear is Not Reasonable Relocation
In, Akosung v. Barr a young woman from Cameroon had been sentenced against her will to marry the village chieftain, or Fon, in order to settle a family debt. Not wishing to suffer this fate, she first hid locally. After her family’s assets and funds were seized, their crops were destroyed, and they were barred from attending social activities as punishment, she fled town.
Akosung remained a fugitive in Cameroon for over a year. A relative who harbored her in another city for most of that time asked her to leave out of fear of repercussions. After relocating again, she barely evaded capture. The police declined to get involved. Akosung eventually managed to cross into Nigeria, and from there, made her way to the U.S.
After an Immigration Judge denied asylum, the BIA dismissed Akosung’s appeal on two grounds. First, the Board determined that she had not shown harm on account of her membership in a particular social group consisting of “women resistant to forced marriage proposals.” More surprisingly, the Board concluded that, in spite of the above tale of near capture and narrow escape, Akosung could somehow safely relocate to another part of Cameroon.
Asylum will be denied to one who could reasonably relocate within their country. Where a dispute is so localized that it can be ended with a move to the next street, neighborhood, or town, the law sees no reason for international intervention.
However, federal regulations that are binding on immigration judges, asylum officers, and the BIA, recognize the complexity of determining whether such relocation, if possible, would be considered reasonable. Per the regulation:
(3) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of this section, adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
That’s quite a lot to consider. And in saying that the listed factors may or may not be relevant or determinative, the judge or asylum officer is being told to dive in deep in analyzing what factors exist, and how much they should matter.
Furthermore, the regulations state that where the persecutor is the government, or where the applicant has already suffered persecution, there is a legal presumption that such internal relocation is not reasonable. It’s not clear from the decision whether the issue was considered, but as the facts state that the applicant’s town was ruled by a council, that it was said council that ordered her marriage to the Fon, and that the police ceded jurisdiction over the matter to the council, a strong argument seems to exist that the persecutor in this case is the government.
Not surprisingly, such a detailed, in depth, thoughtful analysis that cedes so much authority to the immigration judge runs contrary to EOIR Director James McHenry’s goal of assembly line, rubber stamp adjudication. Of course, his agency’s recently proposed regulations aimed at destroying asylum directly attack this rule, and seek to replace it with a much simpler one in which the judges would draw a negative inference from the fact that the asylum seeker had managed to reach the U.S. It’s not clear why reaching the U.S. to seek asylum would demonstrate the reasonableness of remaining in the country in which one is being targeted. Perhaps McHenry seeks to imbue an entirely new meaning to the lyric from Frank Sinatra’s ode to my hometown: “If I can make it there, I’ll make it anywhere?”
In Akosung, the Board treated the regulation as if McHenry’s changes were already in effect. It simply saw that it could easily rubber-stamp the IJ’s denial by checking the “internal relocation” box, and certainly did not bother to undertake the analysis that the actual binding regulation requires.
Fortunately, the Ninth Circuit called foul. Noting that the regulation requires a conclusion that, after considering all of the listed factors, it would be reasonable to expect the applicant to relocate, the court noted that “it hardly seems ‘reasonable to expect’ one facing persecution or torture to become a fugitive and live in hiding.”
The court added some additional statements of the obvious: first, that “‘relocate’ most naturally refers to resettlement or a change of residence, not the unstable situation of one who must always be ready to flee.” And also: “living in hiding does little to establish that a person is able to “avoid future persecution.” To the contrary, it establishes the opposite; hence, the hiding.
The Ninth Circuit also found error in the Board’s social distinction determination. The Board upheld the immigration judge’s questioning of “how anyone in society” would be able to recognize someone “as an individual who has declined a marriage proposal from a fon.”
The court first noted that the statement seemed to erroneously apply the “optical visibility” approach to social distinction (i.e. that the group member should be recognizable on sight to members of society), an approach the Board disavowed in Matter of M-E-V-G-. But the court added that even if the Board here meant that society in Cameroon would not recognize the group as distinct, Akosung’s experience, and that of another woman who she described as being successfully hunted down after also attempting to evade marriage to the Fon, demonstrate otherwise.
The court then quoted Matter of M-E-V-G- as requiring the group to be viewed as distinct “within the society in question,” adding that “the Board should have taken that into account.”
The court did not discuss further how “the society in question” should be defined. And the court’s citation was to page 237 of M-E-V-G-. But as I have noted when lecturing on the topic, the Board on page 243 of the same decision clarified that “persecution limited to a remote region of a country may invite an inquiry into a more limited subset of the country’s society, such as in Matter of Kasinga…where we considered a particular social group within a tribe.”
Later, on page 246 of M-E-V-G-, the Board stated that in Matter of Kasinga, “people in the Tchamba-Kunsuntu tribe” would view members of the particular social group in that case to be “a discrete and distinct group that was set apart in a meaningful and significant way from the rest of society.” The Board then stated its conclusion that the social group in Kasinga “was perceived as socially distinct within the society in question.”
Attorneys should cite to Akosung (along with M-E-V-G-) in arguing that the “society in question” to be considered for social distinction purposes is the society their clients inhabit.
Copyright 2020, Jeffrey S. Chase. All rights reserved. Reprinted With Permission.

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

Wow! Talk about absurdly unfair and totally biased!

For a “real judge” who is committed to due process and understands asylum law, this should have been a 30-minute hearing resulting in a grant of asylum! Instead two levels of EOIR “judges” got this grotesquely wrong in an attempt to deny asylum and return a refugee to harm or death when she clearly is entitled to protection. Because, that’s what their political “handlers” at DOJ and its wholly owned subsidiary EOIR want from their weaponized parody of a “court system.”

These aren’t “legal errors” or “legitimate differences of opinion.” No, they are evidence of “malicious incompetence” – deep intellectual dishonesty and corruption on the part of a fraudulent “tribunals” that under this regime have ceased to serve any legitimate function.

And, that also doesn’t say much good about Article III Courts who see these clear errors time and again, recognize them, yet fail to take the strong, systemic corrective action necessary to stop the BIA’s gross abuses of our legal system and humanity and to hold Billy the Bigot and his subordinate toadies accountable for their misfeasance! That’s a denial of due process by the Article IIIs; it means that only those with the wherewithal to get good representation and pursue appeals beyond EOIR can get anything resembling “justice.” I call that dereliction of duty by the Article IIIs!

Think about this! If folks don’t immediately leave after suffering persecution, then corrupt EOIR adjudicators will sometimes find them not to be in “real danger” or use it as specious “evidence” that the claim isn’t “credible.” But, if they do leave, then that nonsensically shows they could somehow “relocate.”

So in typical EOIR Kangaroo Court fashion, the refugee loses no matter what the facts! I guess that reinforces the “don’t come because we won’t protect you no matter” message that the “New EOIR” is there to deliver! The real issue, however, is why EOIR is still in existence and threatening both our legal system and those seeking justice in America?

Systemic racial injustice in America is no mystery! It’s fueled by Article III Courts that fail to intervene to stop the Trump regime’s racist assault on migrants of all types! Trump, Stephen Miller, “Wolfman” (actually illegally serving at DHS) make no secret of their racist agenda. But, life-tenured Article III Justices and Judges literally keep letting them get away with murder!

Due Process Forever! EOIR’s corrupt “Kangaroo Courts,” never!

PWS

08-17-20

🛡⚔️⚖️ADVENTURES OF THE ROUND TABLE: Latest Amicus Brief To Supremes Weighs In On “Stop Time Rule” — Niz-Chávez v. Barr — Many Thanks to The Pro Bono Stars @ Gibson Dunn!

Niz-Chavez Amicus Brief TO FILE

No. 19-863 IN THE

_______________

AGUSTO NIZ-CHAVEZ,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

_______________

On Writ Of Certiorari

To The United States Court of Appeals For the Sixth Circuit _______________

BRIEF OF THIRTY-THREE FORMER IMMIGRATION JUDGES AND MEMBERS OF THE BOARD OF IMMIGRATION APPEALS

AS AMICI CURIAE

IN SUPPORT OF PETITIONER _______________

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue

New York, NY 10166 (212) 351-4000 rmark@gibsondunn.com

Counsel for Amici Curiae

INTEREST OF AMICI CURIAE

1

1

Amici curiae are thirty-three former immigration judges and members of the Board of Immigration Ap- peals (“BIA” or “Board”).2

Amici curiae have dedicated their careers to the immigration court system and to upholding the immi gration laws of the United States. Each is intimately familiar with the functioning of immigration courts and is invested in improving the fairness and effi- ciency of the United States immigration scheme. Amici curiae’s extensive experience adjudicating im- migration cases provides a unique perspective on the procedures and practicalities of immigration proceed- ings.

SUMMARY OF ARGUMENT

The straightforward question this case presents is one of enormous practical significance: Must the ini- tial written notice served on noncitizens to commence their removal proceedings provide—in one docu- ment—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the requirements of 8 U.S.C. § 1229(a), or does the statute allow the govern- ment to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, some containing misinformation, and

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by coun- sel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

2

none of which alone contains all of the statutorily re- quired information?

Reversing the Sixth Circuit and holding that § 1229(a)’s requirements must be included in a single document will greatly reduce the procedural and bu- reaucratic errors attendant in a two-step process that detrimentally impact thousands of noncitizens law- fully seeking to remain in this country.

I. For noncitizens applying for cancellation of re- moval, service of a valid “notice to appear” under § 1229(a) triggers the so-called “stop-time” rule, which terminates the period of continuous presence required for cancellation eligibility. See 8 U.S.C. §§ 1229b(d)(1), 1229b(a)(2), 1229b(b)(1)(A). Separately but relatedly, for noncitizens ordered removed in ab- sentia, whether that “severe” penalty, Pereira v. Ses- sions, 138 S. Ct. 2105, 2111 (2018), is proper depends on whether the notice served on the noncitizen satis- fied the requirements of §1229(a). 8 U.S.C. § 1229a(b)(5)(A). This Court’s decision will thus touch not only those like Petitioner who are seeking cancel- lation of removal, but also those who may not even have been provided sufficient notice to appear for their removal hearings—and potentially severely punished as a result.

II. The Sixth Circuit’s ruling approves a two-step notice process that involves: (i) the Department of Homeland Security (“DHS”) serving on a noncitizen a putative notice to appear lacking time-and-place in- formation (or, perhaps worse, that includes fake time- and-place information), and (ii) only after that notice to appear is filed and docketed with the immigration court, the immigration court separately sending a “no- tice of hearing” supplying the time-and-place infor- mation to the noncitizen.

3

Under this two-step process an initial notice lack- ing § 1229(a)’s time-and-place information languishes in a proverbial “No Man’s Land” until the notice is filed with an immigration court and entered into the court’s computer systems—a process that can take years. This delay increases the risk of procedural er- rors and lost filings, such as crucial Change of Address forms, which can result in noncitizens never receiving time-and-place information at all—potentially result- ing in wholly unjustified in absentia removal orders.

Sorting through those issues adds to immigration judges’ fact-finding burdens by requiring them to di- vert attention from the merits of a case to investigate collateral issues like whether time-and-place infor- mation was provided in a second document; whether that document was properly served; and whether a fil- ing like a Change of Address form was submitted but ultimately lost in “No Man’s Land.” When coupled with the pressure to complete cases—even if it means churning out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice—the result may be an increase in unwarranted removal orders.

These problems would be ameliorated if the gov- ernment simply provided the actual time-and-place information in a single document as required by § 1229(a).

III. Requiring DHS to work with the Executive Office of Immigration Review (“EOIR”) to obtain time- and-place information before serving a notice to ap- pear—and including such information in that docu- ment, as § 1229(a) and Pereira require—is practical and within the government’s capabilities.

4

A single-step notice process, consistent with this Court’s ruling in Pereira, furthers the due process ax- iom that a party charged to defend against a legal pro- ceeding must receive notice of the time and place of the proceeding and an opportunity to be heard.

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

Read the complete brief, with better formatting, at the link!

Of course we couldn’t have done this without the amazing talent and assistance of Amer S. Ahmed and the rest of the “Pro Bono All-Star Team” 🎖🏆 @ Gibson Dunn! Just another example of the essential contribution of pro bono lawyers to literally saving our legal system that has been featured on “Courtside” this week!

Due Process Forever!

PWS

08-14-20

🏴‍☠️☠️🤮⚰️DEADLY GULAG: CMS Reports Continue To Document What We Already Know: The Trump Regime’s “New American Gulag” Needlessly Kills Migrants While Endangering Public Health & Wasting Lots Of Taxpayer Funding!

Donald M. Kerwin
Executive Director
Center for Migration Studies

Dear Colleagues,

Over the last few months, the Center for Migration Studies (CMS) has been trying to err on the side of pushing out work in progress, rather than waiting to publish polished and complete work. Some of our work in progress can be found on our web-page devoted to migration-related,

COVID-19 issues.https://cmsny.org/cms-initiatives/migration-covid/. We have also been regularly updating a “compendium” of US detention developments. The latest and final version of that working “report” can be found here:

https://cmsny.org/publications/immigrant-detention-covid/ . The short report is about how the well-documented problems in the US immigrant detention system, combined with the callous, politically-driven policies of the Trump administration, have predictably facilitated the spread of COVID-19 inside and beyond the US immigrant detention system. Since we finished this version of the report on August 3, at least two more detainees have died from COVID-19-related “complications” and, no doubt, more will follow and ICE will continue to promise full, agency-wide investigation of these deaths:

https://www.aila.org/infonet/deaths-at-adult-detention-centers. We will be broadly disseminating this report and an upcoming exhaustive report on immigrant essential workers. However, please help us to distribute this detention report to others. We hope it will be a useful resource.

Best wishes and thanks,

Don Kerwin

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

Thanks, Don!

Get the CMS reports at the above links!

They should be helpful evidence in litigating to put an end to this disgracefully unconstitutional and inhuman system. To paraphrase my friend and colleague Professor Phil Schrag of Georgetown Law, author of Baby Jails, in America we treat refugee children worse than convicted felons!

To once again state the obvious, the outrageous amount of money we waste on unnecessary and illegal DHS “civil” detention in the Gulag could be “repurposed” to more constructive uses like funding legal representation, resettling asylees, and transitioning to an independent Article I Immigration Court. America’s health and welfare, as well as our national moral standing, would be vastly improved.

PWS

08-13-20

WHITE NATIONALISTS BEWARE: 9th Cir. Fires Warning Shot Across Bow Of Racist Judges, Prosecutors, & Police — No Qualified Immunity For You, Neo-Nazis! — Reynaga Hernandez v. Skinner

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-fourth-amendment-reynaga-hernandez-v-skinner

Dan Kowalski reports for LexisNexis Immigration Community:

Daniel M. Kowalski

11 Aug 2020

Fourth Amendment

CA9 on Fourth Amendment: Reynaga Hernandez v. Skinner

Reynaga Hernandez v. Skinner

“In late 2017, a witness in a courtroom in Billings, Montana, testified that one of the other witnesses, Miguel Reynaga Hernandez (“Reynaga”), was “not a legal citizen.” On the basis of this statement, the Justice of the Peace presiding over the hearing spoke with the local Sheriff’s Office and asked that Reynaga be “picked up.” Deputy Sheriff Derrek Skinner responded to the call. Outside the courtroom, Skinner asked Reynaga for identification and questioned him regarding his immigration status in the United States. Reynaga produced an expired Mexican consular identification card but was unable to provide detailed information regarding his immigration status because he does not speak English fluently. Skinner then placed Reynaga in handcuffs, searched his person, and escorted him to a patrol car outside the courthouse. With Reynaga waiting in the back of the patrol car, Skinner ran a warrants check and, after Reynaga’s record came back clean, asked Immigration and Custom Enforcement (“ICE”) if the agency had any interest in Reynaga. Reynaga was ultimately taken to an ICE facility and remained in custody for three months. Upon his release, Reynaga sued Skinner and Pedro Hernandez, the presiding Justice of the Peace (“Hernandez”), under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. On cross-motions for summary judgment, the district court denied each defendant qualified immunity and held that Reynaga’s Fourth Amendment rights had been violated. Skinner and Hernandez interlocutorily appeal the court’s denial of qualified immunity. We affirm.”

From NWIRP: “This decision is important as it makes clear that state and local law enforcement officers may be held liable under the civil rights statute if they unlawfully detain community members in order to turn them over to immigration enforcement,” said Matt Adams, legal director for NWIRP. “Police officers—and even local judicial officials—may be held accountable when, instead of serving the community, they take it upon themselves to stop people based on their suspected immigration status, the language they speak, or their ethnicity or the color of their skin.” “The harm that [Judge Hernandez and Deputy Skinner] did to me is hard to explain,” said Mr. Reynaga in reacting to the court of appeals decision. “It’s something that lives in me and in my family now. It’s hard to describe what this harm represents to a person. But I’m very grateful for the work NWIRP has done for me. I’m very happy and proud that now immigrants here in Montana and in other states can know that we also have rights.” Following the court of appeals decision, Mr. Reynaga’s case will return to the district court for further proceedings on the damages he is entitled to in light of the violation of his constitutional rights.”

[Hats way off to Matt Adams (argued), Leila Kang, Aaron Korthuis, and Anne Recinos, Northwest Immigrant Rights Project, Seattle, Washington, and Shahid Haque, Border Crossing Law Firm P.C., Helena, Montana; for Plaintiff-Appellee!]

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

Who knows what the Supremes might do on on this? So far they have been reluctant to enforce the Constitution against racism in law enforcement. Remember, they recently gave the Border Patrol a license to unconstitutionally shoot and kill a Mexican kid across the border in Mexico. And, the Supremes majority has happily found ways to impose possible death sentences on legal asylum seekers of color without any meaningful process at all.

The “JR Five” aren’t particularly creative thinkers —except when it comes to thinking of ways to dehumanize (“Dred Scottify”) persons of color under our Constitution. Then they often are happy to fabricate any rationale to deny due process and equal protection under our laws.

Due Process Forever!

PWS

08-12-20

LIFESAVING 101 FOR THE NDPA BEGINS WITH PRO BONO! – Never Has The Need Been Greater – Pro Bono’s Finest Hour In America’s Time Of Darkness, Cruelty, & Inhumanity! – From “The Asylumist” Jason Dzubow!

Here’s the link:

https://www.asylumist.com/2020/08/11/asylum-seekers-need-pro-bono-lawyers-now-more-than-ever/

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

Yes, never has pro bono been more important than it is now!

This is a regime of White Nationalist cowards. Part of their strategy for “Dred Scottification” and dehumanization of “the other” is to pick on asylum seekers and immigrants first, because they are the “easy marks” often stuck in a system they have no realistic chance of navigating with no representation. Then extend the “dehumanization” and abrogation of due process and equal protection to other categories of “the other:” Hispanics, Blacks, LGBTQ, women, Muslims, Asians, etc. until basically only GOP White Christian straight males and their “female fellow travelers” have any individual rights that will be protected by the Federal Courts.

Think we’re not moving in that direction? Check out Roberts’s “head in the sand” claim that picking on Dreamers had nothing to do with racism directed at Hispanics. Or the Supremes’ majority’s totally dishonest approach to voting rights of people of color: “Yes, we see the GOP ‘fix is on’ to disenfranchise you. But, we’re only the Supremes, so we aren’t going to do anything to protect your Constitutional right to vote. You’ll have to solve it politically at the same time you are being disenfranchised by a minority of white GOP politicos and GOP voters with our help. We help the ‘perps in power,’ not their ‘victims of color.’”

So totally emboldened is Trump by the Supremes’ complicity in racism that he is hatching plans to bar U.S. citizens and LPRs from entering over the Southern Border if they are “suspected of having COVID” while he lets COVID run wild in the U.S. and actively undermines science and rational attempts to control the pandemic. Want to bet on how many of those USCs and LPRs barred at the border will be White and how many will be Hispanic Americans? But, Roberts will “just say OK” because “lots of Hispanic Americans come over the Southern Border.”

Roberts once got all huffy and self-righteous when dissenting colleagues correctly accused him of reviving discredited precedents that supported internment of Japanese Americans. He even went through the motions of supposedly overruling that leading case. But, then he basically followed its racist and invidious doctrines by essentially substituting Muslims, Hispanics, asylum seekers, refugees, and immigrants for Japanese Americans. Dehumanization is alive and well at the Supremes today. The targets might change; but the ugliness and unlawfulness doesn’t.

One great way to fight back against these racist attacks by Trump is by insuring that unrepresented or underrepresented migrants are no longer the “low hanging fruit” of racist intimidation and unequal treatment before the law. Fill the Federal Courts with litigation and force complicit Federal Judges, from Immigration Judges all the way up to and including the Supremes, to look at the face at their own ugly racist enabling and human rights denying misfeasance in office every day. Make a public record to insure that their kids, grandkids, and all future generations know just how spinelessly their ancestors performed when confronted with clear, grotesque, and deadly violations of human rights and human dignity. How when the “chips were down” for democracy and human decency, they were MIA!

Right now, we’re in the long overdue process of tearing down the statutes of past racists like Chief Justice Roger Taney of “Dred Scott infamy.” But, we must insure that the statutes of the Federal Judges and other public officials who are enabling and promoting modern-day “Dred Scottification” never get built in the first place.

Remember my “Five Cs” – Constantly Confront Complicit Courts for Change!

Due Process Forever! And, of course, thanks every day to the legions of pro bono fighters among the ranks of our “New Due Process Army” who courageously champion the cause of the most vulnerable among us, thereby protecting all of our individual rights, at a time of great and disturbing national cowardice and unparalleled corruption and incompetence among the GOP “governing” class and their enablers and apologists.

PWS

08-11-20

🏴‍☠️☠️⚰️👎🏻🤮END OF REFUGEE PROGRAMS SIGNALS DEMISE OF AMERICA! — “Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here!”

🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️⚰️⚰️⚰️⚰️⚰️👎🏻👎🏻👎🏻👎🏻👎🏻

https://www.washingtonpost.com/outlook/refugees-united-states-abandon/2020/08/07/6085e81c-d751-11ea-aff6-220dd3a14741_story.html

U.S. Asylum Officer Jason Marks writes in the WashPost Outlook Section:

. . . .

Collectively, we were told to implement restrictive new policies, expressly designed to deter people from seeking refuge. The Migrant Protection Protocols, for example, resulted in more than 60,000 asylum seekers being sent to Mexico in 2019, after fleeing the extreme brutality of MS-13 and the 18th Street gang in Honduras, Guatemala and El Salvador. Left to live in squalor without any protection, they are preyed upon by cartels and gangs as they wait, sometimes months, for an elusive court date before an immigration judge.

[I became an asylum officer to help people. Now I put them back in harm’s way.]

The pandemic put refugees and asylum seekers in even more desperate straits, as the United States paused refugee resettlement. Many already interviewed and accepted for resettlement in the U.S. now live stateless at the margins of cities, towns and villages where they have no rights or legal status, or in overcrowded refugee camps. Around the world, in places including Jordan, Kenya and Bangladesh, refugee camps are bursting at the seams. People there are unable to practice social distancing, and soap and water are limited.

Meanwhile, at our borders, Customs and Border Protection has turned away thousands of vulnerable people since March, without due process. Some applicants showing symptoms of the coronavirus were deported with no regard for safety measures (such as testing), causing outbreaks in the countries from which they had fled. Others languish in crowded detention facilities, even though many of them pose no security threat and Immigration and Customs Enforcement has the discretion to release them. By law, children must be let out after 20 days of incarceration. But rather than release them with their parents, our government has presented these families with an agonizing choice: Either have their children released, indefinitely separated from their parents — or remain locked up together in these facilities, many of which have already witnessed coronavirus outbreaks.

Amid all this, in June, the administration proposed 161 pages of sweeping regulations that would gut asylum and refugee law. Certain provisions, for example, drastically narrow the definitions of persecution and torture; others raise certain burdens of proof to nearly unreachable standards and redefine what constitutes the protected grounds of political opinion and membership in a particular social group. Still others could disqualify applicants if they made a mistake on their tax filings, or took two or more layover flights on their way here. In July, the administration proposed yet another new policy, allowing the United States to deny asylum to applicants if they come from any country with an outbreak of a highly contagious disease. (Public health experts have said this would serve no legitimate public health purpose.) It’s difficult to see how anyone could qualify for protection under this tangle of new rules, once they’re implemented.

Years of tightening restrictions have made it harder to obtain a wide range of legal immigration benefits, causing applications to plummet and, with them, the user fees that fund U.S. Citizenship and Immigration Services operations. Now, the pandemic has placed our agency on the brink of bankruptcy, and 70 percent of our workforce faces an indefinite furlough unless Congress intervenes. Without emergency funding, only a skeleton crew will remain to administer America’s immigration services system — resulting in even greater backlogs in the processing of applications for benefits including asylum, green cards, work permits and citizenship.

Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here. If the current administration’s policies continue unchecked, there will no longer be a pathway for refugees to have a new beginning in the United States. Even if a different presidential administration tried to change course, I fear that it would take many years to reverse the damage and rebuild our capacity to protect refugees. Many people will lose their lives before then.

In the closing words of his farewell address, President Ronald Reagan described our country as a “shining city upon a hill”: “If there had to be city walls,” he said in 1989, “the walls had doors, and the doors were open to anyone with the will and the heart to get here.” That is still something most Americans believe in.

[Read more from Outlook:]

[Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers]

[Americans are the dangerous, disease-carrying foreigners now]

[During the covid-19 pandemic, immigrant farmworkers are heroes]

[Follow our updates on Facebook and Twitter.]

Jason Marks, an asylum training officer with the United States Citizenship and Immigration Services (USCIS), writes here as a shop steward for Local 1924, American Federation of Government Employees, which represents employees of the USCIS Asylum and Refugee Officer Corps.

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

Read the rest of Jason’s article at the above link.

It’s not rocket science! Misusing, misinterpreting, and misapplying refugee and asylum laws to “reject not protect” is clearly illegal, unconstitutional, and immoral to boot! It’s also, not surprisingly, toxic public policy because it squanders and misdirects resources on efforts to that actually hurt our economy, society, and reputation. In other words, fraud, waste, and abuse on a grand and deadly scale!

So, a career Asylum Officer has more legal knowledge, guts, and human decency than the life-tenured, yet removed from both reality and humanity, Supremes’ majority! What’s wrong with this picture!

75 years after the end of World War II, America has installed a racist, neo-Nazi White Supremacist Government. Go figure!

To make this happen, Trump and his cronies needed both a feckless Congress and Supremes committed to empowering authoritarian racism in the name of Executive authority. He got both!

We have an opportunity, perhaps our last as a nation, to return to a nobler vision of America. But it will require ousting not only the morally corrupt and maliciously incompetent Trump regime but also the equally immoral GOP Senators who have enabled and enthusiastically hastened our national demise. That will give us a start on the longer-term project of better Justices and Federal Judges for a better America.

There is no excuse whatsoever for the cowardly, disingenuous, and immoral failure of the Roberts Court to stand against Trump. Instead, they have embraced the “Dred Scottification” — that is, dehumanization — of refugees, asylum seekers, immigrants, and persons of color. Why is this judicially-enabled retrogression to the “Hay-day of Jim Crow” acceptable in 21st Century America?

This November, vote like your life and the future of our nation and the world depend on it! Because they do!

PWS

08-09-20

🏴‍☠️☠️⚰️👎🏻DEATH IN THE GULAG: DHS Racks Up 17th Detainee Kill Of Fiscal Year — Doubling Previous Year’s Body Count ⚰️ With Months To Go As “DUD” Program Hits High Gear! — Death Either Here Or Upon Return To Danger Without Fair Hearings Is The “Ultimate Deterrent” For America’s White Nationalist Regime!

DUD = “Detain Until Dead”

https://apple.news/AEJpCWSaJQMyWS9vMdp33bQ

Danielle Silva reports for NBC News:

More than twice as many immigrants have died in the custody of Immigration and Customs and Enforcement this fiscal year than last after two detainees died this week. That brought this year’s total to 17, compared with eight deaths last year.

A 72-year-old Canadian man who had tested positive for the coronavirus died in ICE custody on Wednesday night at a Virginia hospital, the agency said Friday in a statement.

James Thomas Hill reported feeling shortness of breath to staff at an ICE detention facility in Farmville, Virginia, on July 10 and was admitted to Centra Southside Community Hospital before being transferred to Lynchburg General Hospital the following day, ICE said.

A COVID-19 test administered by hospital staff came back positive on July 11, the agency said.

Hill entered ICE custody on April 11 following his release from the Rivers Federal Correctional Institute in North Carolina after serving 13 years of a 26-year prison sentence for health care fraud and distributing a controlled substance, according to ICE. An immigration judge had ordered his removal on May 12, ICE said. At the time of his death, Hill was in ICE custody pending his removal to Canada, the agency said.

The agency said it had notified the Department of Homeland Security’s Office of Inspector General, the ICE Office of Professional Responsibility, the Canadian consulate and Hill’s next of kin. His death was first reported by BuzzFeed News.

A 51-year-old Taiwanese man died Wednesday afternoon at a Florida hospital after being a diagnosed with a “massive intercranial hemorrhage,” ICE said in a separate statement Thursday.

Kuan Hui Lee was found unresponsive at the Krome Service Processing Center in Florida on July 31 and taken to the Kendall Regional Medical Center.

. . . .

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

I think this is just the beginning of the true carnage that advocates have been predicting for months. And that doesn’t even count those killed after being “orbited” by DHS in violation of the statute and due process as a complicit Supremes majority egged them on.

The shame of our nation’s intentional dehumanization and mistreatment of asylum seekers and other migrants under the Trump regime won’t be eradicated. What kind of “democracy” runs a “Gulag” for non-criminals where all “sentences” are arbitrary and indefinite and the there is no readily available impartial review of detention by a neutral and detached magistrate? Where Supreme Court Justices worry more about the impact of “nationwide injunctions” and “bogus emergencies” declared by an patently unqualified and invidiously biased Executive than they do about the lives, health, and freedom of individuals whose “crime” is to assert their legal and Constitutional rights?

While the problem starts with a White Nationalist, racist regime and a feckless GOP-controlled Senate under Moscow Mitch, those Federal Judges at all levels who could have put an end to these “crimes against humanity,” but failed to do so, also bear responsibility for the death and destruction of human lives by the regime.

Due Process Forever! Complicit Courts, Never (Again). Better Justices & Judges For A Better America!

PWS

08-08-20

THREE STRIKES & YOU’RE OUT — Faced With BIA’s Third Wrong Deportation Order In Same Case, 9TH Cir. Finally Ends EOIR’s Decade-Long Effort To Misconstrue Law To Deport — Valenzuela Gallardo v. Barr (Valenzuela Gallardo III), Vacating Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018)

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf

Valenzuela Gallardo v. Barr, 9th Cir., 08-06-20, published

SYNOPSIS BY COURT STAFF:

Immigration

The panel granted Agustin Valenzuela Gallardo’s petition for review of a decision of the Board of Immigration Appeals and vacated his order of removal, holding that 8 U.S.C. §1101(a)(43)(S), which describes an aggravated felony “offense relating to obstruction of justice,” requires a nexus to an ongoing or pending proceeding or investigation and that, therefore, the BIA’s contrary construction of the statute was inconsistent with the statute’s unambiguous meaning.

In a prior published opinion, the BIA found Valenzuela Gallardo removable on the ground that his conviction for being an accessory to a felony, in violation of California Penal Code § 32, was an obstruction of justice aggravated felony under 8 U.S.C. §1101(a)(43)(S). Switching directions from its precedent, the BIA concluded that the existence of an ongoing proceeding was not an essential element of an offense relating to obstruction of justice. However, a prior panel of this court vacated the BIA’s redefinition because it raised serious questions about whether the statute is unconstitutionally vague. On remand, the BIA issued a published decision concluding that obstruction of justice offenses included not only offenses that interfered with ongoing or pending investigations or proceedings, but also those that interfered with investigations or proceedings that were reasonably

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

VALENZUELA GALLARDO V. BARR 3

foreseeable by the defendant. Valenzuela Gallardo again petitioned for review.

The panel began at Chevron Step Zero, where the court determines whether the Chevron framework applies at all. The panel noted amici’s argument that the BIA’s interpretation of the term “aggravated felony,” which includes offenses related to obstruction of justice, is ineligible for Chevron deference because the term has dual application in both civil proceedings, including removal proceedings, and criminal proceedings, including increased maximum prison terms for illegal reentry. The panel explained that deferring to the BIA’s construction of statutes with criminal applications raises serious constitutional concerns because only Congress has the power to write new federal criminal laws. However, the panel concluded that it was bound by the law of the case doctrine because the panel that decided Valenzuela Gallardo’s prior petition for review had applied the Chevron framework, and no exceptions to the doctrine applied.

At Chevron Step One, the panel concluded that 8 U.S.C. § 1101(a)(43)(S) is unambiguous in requiring a nexus to an ongoing or pending proceeding or investigation. The panel rejected the Government’s assertion that the court had already held that the statute is ambiguous in this regard. Next, the panel explained that the ordinary meaning of the term “obstruction of justice” when the statute was enacted in 1996 required a nexus to an extant investigation or proceeding. Looking to the term’s relevant statutory context – which the panel concluded to be Chapter 73 of Title 18, entitled “Obstruction of Justice” – the panel further explained that almost all of the substantive provisions in Chapter 73 that existed in 1996 required a nexus to an ongoing or pending proceeding or investigation.

4 VALENZUELA GALLARDO V. BARR

Because the panel concluded that § 1101(a)(43)(S) was unambiguous, it did not proceed to Chevron Step Two. The panel also noted that it would reach the same conclusion even if it were not to apply the Chevron framework.

Finally, the panel concluded that the statute under which Valenzuela Gallardo was convicted, California Penal Code § 32, is not a categorical match with obstruction of justice under § 1101(a)(43)(S) because the text of § 32 and its practical application demonstrate that it encompasses interference with proceedings or investigations that are not pending or ongoing. Accordingly, the panel vacated Valenzuela Gallardo’s removal order.

COUNSEL:

Frank Sprouls (argued) and John E. Ricci, Law Office of Ricci & Sprouls, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California, for Amici Curiae American Immigration Lawyers Association, U.C. Davis School of Law Immigration Law Clinic, and Asian Americans Advancing Justice—Asian Law Caucus.

PANEL: Eugene E. Siler,* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.

The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY: Judge Wardlaw

KEY QUOTE:

Nonetheless, both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis of the precise question before us—whether the BIA’s new “reasonably foreseeable” definition is at odds with the plain meaning of the statute, which was not before the prior panel—lead us to the same conclusion: the statute is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board’s most recent interpretation is at odds with that unambiguous meaning.

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

So, let’s put this in perspective. Today’s EOIR has been “weaponized” by the Trump regime as a deportation assembly line. Immigration Judges and the BIA are pushed to cut corners and avoid careful legal analysis in a rush to deport.

Beyond that, the regime has, with the connivance of the Supremes, found ways to deport asylum seekers and others without any meaningful hearing whatsoever. Notwithstanding all these gimmicks, moronic “production quotas,” coercive detention, biased anti-immigrant “precedents,” and the appointment of mostly prosecutors to function as “judges,” the EOIR backlog continues to mushroom out of control because of the regime’s gross mismanagement.

Yet, in the middle of all this mess, the BIA finds time to spend a decade, including three trips to the Court of Appeals, trying to manipulate the law and disregard and misinterpret prior precedent in a misguided effort to wrongfully deport this particular individual. What if we had judges who just got it correct in the first place? No wonder this system is totally out of control.

Do we need a maliciously incompetent and misdirected system like this? Of course not!

With the same amount of resources, a group of independent, qualified expert judges committed to the rule of law and due process could drastically improve the functioning of the Immigration Courts by rendering fair decisions, granting more relief where possible, and working with all “stakeholders” to prioritize cases, find alternate dispositions for “non-priority cases,” and to move the cases that actually need to be tried through the system in a fair, reasonable, professional, and predictable manner. Such a system would produce more consistency and would avoid much of the wasteful litigation and constant intervention of the Courts of Appeals to correct mistakes that is now a staple of this system. It would be a “win” for everyone involved, including the DHS’s legitimate enforcement functions.

Of course, the particular problem with this case began when the “Post-Ashcroft-Purge” BIA started fabricating ways to deviate from one of the old “Schmidt Board” precedents, Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892–94 (BIA 1999) (en banc). That case had actually found in favor of the (unrepresented) respondent, an unheard of result in today’s “bend and distort the law to deport” climate fostered by “Billy the Bigot” Barr and his predecessor “Gonzo Apocalypto” Sessions! You basically can trace EOIR’s continuous downward “death spiral” from “The Purge.”

Due Process Forever!

PWS

08-07-20

🤡☠️🤮CLOWN COURTS’ DEADLY REOPENING SCHEME ISN’T A “PLAN AT ALL” —It’s A Recipe For Dysfunction, Disaster, & Potential Death By “Malicious Incompetence” — Are There No “Grown Ups” Left in Congress or The Article IIIs With The Guts To End This Stain Our Nation?

https://immigrationimpact.com/2020/08/04/coronavirus-immigration-court/

Aaron Reichlin-Melnick on Immigration Impact:

COVID-19 Wreaks Havoc on Immigration Courts With No Clear Plan to Stop Spread

Posted by Aaron Reichlin-Melnick | Aug 4, 2020 | Due Process & the Courts, Immigration Courts

As the COVID-19 pandemic continues to spread throughout the United States, immigration courts around the country remain in turmoil.

The Executive Office for Immigration Review (“EOIR”) initially postponed all non-detained hearings when lockdowns began in March. However, EOIR refused to close all courts. Hearings for detained immigrants and unaccompanied children continued, despite the risks. Now, nearly five months later, EOIR still has no public plan to limit the spread of COVID-19 as it slowly begins to reopen courts around the country.

Immigration Courts Reopen Across the U.S.

Beginning in mid-June, EOIR began reopening some immigration courts, starting with the Honolulu immigration court.

Since then, courts have reopened for hearings in Boston, Dallas, Las Vegas, Hartford, New Orleans, Cleveland, Philadelphia, Newark, Baltimore, Detroit, and Arlington. However, following the rise in COVID-19 cases in Texas, the Dallas immigration court was open for less than a week before shutting again. It remains closed.

After the court reopened in Newark, immigration lawyers filed a lawsuit seeking to halt the court reopening. They explained that the court has not provided enough safety protocols. According to the lawsuit, they believe at least two deaths, including an immigration lawyer and a clerk for ICE in Newark, can already be traced to court hearings that occurred before the initial shutdown.

At a town hall, the National Association of Immigration Judges discussed the reopening. The union stated that EOIR doesn’t determine which courts reopen. Those decisions come from the local U.S. Attorney, who are political appointees working for the Department of Justice.

No Concrete Plan for Stopping COVID-19 Spread in Courts

Making matters worse, EOIR has still not explained what the criteria are for opening courts. The only safety guidelines the agency has published are simply those generally applicable to the public, such as asking people to socially distance, wear masks, and not appear in court if they have tested positive for COVID-19.

These limited guidelines do not provide anywhere near enough information to ensure safety for people appearing in court.

For example, EOIR fails to explain how translation services will work, which is but one of many unresolved questions about safety. In many courts, interpreters sit directly next to the person for whom they are interpreting so they can hear every word. But social distancing would be impossible in that scenario.

If EOIR wanted to replace all in-person interpretation with telephonic interpretation, that may not be a viable solution. Some people’s cases could be hurt by lower quality interpretation over what are often noisy phone lines.

Courts that have reopened have mostly been hearing only “individual” merits hearings, the equivalent of a trial in the immigration court system. Master calendar hearings, at which dozens of people wait in a courtroom together to review their immigration charges, are not currently happening in most reopened courts.

The agency has indicated that some master calendar hearings with reduced numbers of participants will move forward. But even with a limited caseload, practitioners report chaos and confusion as court hearings begin again.

Lawyers report having cases advanced or postponed with little notice and almost no input. This can be particularly hard for individuals without attorneys. They may be unable to keep track of rapid changes at the courts.

This chaos underscores the need for a public safety plan. EOIR must ensure the public that it can run the courts safely.

Without that plan, the agency’s actions so far reinforce the White House’s goal of keeping the deportation machine running without taking public health into consideration. Before any further courts reopen, EOIR must make its plans clear, or else public health and the right to a fair day in court will continue to suffer.

FILED UNDER: covid-19, EOIR

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

Wow! Talk about a democracy in meltdown!

Some of those caught up by these “crimes against humanity” won’t survive to tell their stories. So, it’s important that those of us who recognize this unending tragedy both document it and insure that history will not let those responsible escape accountability, be they Supreme Court Justices, political leaders, or lower level bureaucrats repeating the hollow “just doing my job” mantra as they enable or carry out these grotesque acts.

For those who watched “Immigration Nation,” how many times did you hear variations of the latter excuse from Federal bureaucrats as they heaped unnecessary, and in many cases illegal and immoral, carnage on their fellow human beings? How many times did you hear folks who are supposed to understand the system falsely use the “get in line” or “do it the right way” lies?

The ugly stain of the Trump regime’s illegal conduct, cowardice, cruelty, dishonesty, and inhumanity, and that of those who aided and abetted it, will not be wiped away!

Due Process Forever!

PWS

08-06-20

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