🇺🇸⚖️🗽👩🏽‍⚖️ COURTS/ROLE MODELS: A New U.S. District Judge Who Understands Due Process, Equal Protection, Human Rights, & Relationship to Immigrants’ Rights  — Meet U.S. District Judge Araceli Martínez-Olguín, Profiled By Jack Karp @ Law360 — “A thoughtful, compassionate jurist who understands firsthand how the law impacts real people.”

 

U.S. District Judge Araceli Martínez-Olguín
Hon. Araceli Martínez-Olguín
U.S. District Judge
N.D. CA
PHOTO: Wikipedia

https://www.law360.com/pulse/courts/articles/1598878

Jack Karp @ Law360:

The second Latina to be confirmed to the Northern District of California bench and one of the few immigrant rights attorneys to become a federal judge will be a thoughtful, compassionate jurist who understands firsthand how the law impacts real people, lawyers who know her say.

U.S. District Judge Araceli Martínez-Olguín was confirmed by the U.S. Senate in a 48-48 vote in February, with Vice President Kamala Harris casting the tie-breaking vote in her favor. Her confirmation makes Judge Martínez-Olguín just the second Latina to serve in the Northern District of California, according to the White House’s July announcement of her nomination.

It also makes Judge Martínez-Olguín the rare federal judge who has spent most of her career helping protect immigrants’ rights.

“It’s a slightly different path than we’re used to seeing in folks appointed to the bench, which I think is great,” said attorney Nora Preciado, who worked with Judge Martínez-Olguín at the National Immigration Law Center.

That background gives Judge Martínez-Olguín a unique understanding of the law, particularly when it comes to constitutional issues, which she often dealt with in her immigrant rights work, Preciado added.

But it will also make her more compassionate as a judge, according to those who know her.

“Immigration is a complex field that requires a lot of legal knowledge, but also requires compassion and empathy,” said Brian Amaya, current president of the East Bay La Raza Lawyers Association.

“The ability for a person to stay in this country with their family in order to avoid persecution, famine, war or political instability can be the most important legal decision or conclusion our legal system can make,” Amaya told Law360 Pulse. “It is important that members of our bench are individuals that can apply the law to real-life situations involving real-life people, in ways that are both lawful but full of compassion.”

While at NILC, Judge Martínez-Olguín spearheaded the organization’s work involving the Deferred Action for Childhood Arrivals program, including representing a class of DACA recipients who challenged the U.S. Department of Homeland Security‘s efforts to curtail that program, according to a questionnaire she submitted to the Senate Judiciary Committee.

She contributed to merits and post-argument briefing when that case was consolidated with parallel challenges before the U.S. Supreme Court, she told the Senate.

Judge Martínez-Olguín also served as lead counsel in a Tennessee civil rights class action brought by Latino workers who alleged that their arrests during a worksite immigration raid lacked probable cause and were discriminatory.

Those cases and others showed the judge to be a very calm, steady and methodical litigator, according to Preciado, who worked with her on the Tennessee case.

“Areceli has always been somebody who’s very thoughtful, thorough, methodical in her legal thinking,” Preciado said. “She’s somebody who always wants to really dig deep into issues. She has a very steady approach and temperament to practicing law.”

“As an attorney, Judge Martínez-Olguín was known as a quick learner and could handle any type of legal issue,” echoed Ray Manzo, president of the San Francisco La Raza Lawyers Association.

She also loved to discuss those issues with her teammates, Preciado added.

Amaya added, “Just from talking to her, you could tell she was a brilliant legal mind. It was often my pleasure to just talk law with her. I believe that this was her most impressive quality — her vast understanding of the law and her ability to critically think about it and discuss it in a straightforward manner.”

Prior to her work at NILC, Judge Martínez-Olguín established and ran the Immigrants’ Rights Project at Community Legal Services in East Palo Alto, California, where she conducted policy advocacy, took on impact litigation and counseled local community groups, according to her Senate questionnaire.

“She certainly jumped into a lot of issues,” the organization’s executive director Katrina Logan said. The judge was “always looking for opportunities to use the law to promote and support our clients and the issues that impact them,” Logan said.

She also developed the organization’s emergency plan to deal with potential U.S. Immigration and Customs Enforcement detention of the group’s clients or possible ICE appearances at the organization’s offices, according to Logan.

“She was super-resourceful,” Logan added. “It was really great working with her, and I think she added a lot to our organization.”

Judge Martínez-Olguín also spent time in the ACLU‘s Women’s Rights Project and Immigrants’ Rights Project, litigating human trafficking claims involving the Foreign Sovereign Immunities Act and educating female farmworkers about how to protect their rights when faced with sex discrimination on the job, she told the Judiciary Committee.

She worked on the team that challenged the constitutionality of Arizona’s policy of denying driver’s licenses to DACA recipients under the supremacy and equal protection clauses, according to her Senate questionnaire. And she was part of a group of advocates who provided expertise about crafting the 2008 reauthorization of the Trafficking Victims Protection Act to better protect foreign workers.

Judge Martínez-Olguín has also worked at Legal Aid at Work as a staff attorney in its National Origin, Immigration and Language Rights Program, and in the U.S. Department of Education‘s Office for Civil Rights, where she investigated complaints against school districts and universities, according to her Senate questionnaire.

That background dealing with immigrants’ rights issues means the new jurist is steeped in constitutional issues such as due process, equal protection and freedom of speech, Preciado pointed out.

“It’s a great addition to the court because she’s somebody who has had to grapple very deeply with constitutional issues throughout her career, and I think few lawyers have that kind of experience under their belt,” Preciado said.

But more than her legal knowledge and acumen, what stands out to most of the attorneys who know her is how compassionate and caring she is, especially when it comes to her clients, they said.

“She was somebody who approached the law and the power of the law from a very human perspective, from a very personal connection with folks who are going through the system,” Preciado said.

This skill was especially apparent when the judge was dealing with the clients she and Preciado represented in the Tennessee case, where it was important for her to connect with those clients after they’d been through a traumatic immigration raid, Preciado said.

“She wasn’t showing up as just a brilliant lawyer, but also a human being and somebody who understood what people had gone through and wanted to be there to support in any way possible,” Preciado said. “That’s something that I really admire in her.”

Judge Martínez-Olguín also cares deeply about mentoring young Latina attorneys and working to improve their representation in the legal industry, according to these lawyers.

She has served as president and on the board of the East Bay La Raza Lawyers Association and on the board of the San Francisco La Raza Lawyers Association, according to her Senate questionnaire. Both organizations focus on expanding legal access in the Latinx community and supporting Latinx attorneys.

She “worked tirelessly” to keep the East Bay La Raza Lawyers Association funding scholarships and promoting mentorships for Latinx law school students, according to Amaya. And she made sure the organization’s Judicial Endorsement Committee met with and endorsed candidates for the bench, especially those who would promote the organization’s mission.

“She did a lot to continue our mission statement of growing the Latinx community’s presence in the California bar and bench,” said Amaya.

Judge Martínez-Olguín has even taught Spanish for Lawyers at the University of California, Berkeley School of Law, where she earned her law degree.

That wasn’t her first time in the classroom. Before attending law school, the judge was a bilingual kindergarten teacher in Oakland, California, she told the Senate Judiciary Committee.

After graduating from law school, she clerked for U.S. District Judge David Briones in the Western District of Texas.

All those elements of her background mean Judge Martínez-Olguín will bring a unique and much-needed perspective to the federal bench, according to attorneys.

Her confirmation is “very significant, because it will bring a different viewpoint that is missing on the bench,” Manzo said. “Judges bring their career and personal experiences when making decisions, and having her there with a civil rights/immigration attorney and Latina viewpoint will create a richer discussion and interpretation of the law.”

“She will truly be able to apply sound legal principles to real-life situations that deal with real-life people and have real-life outcomes,” echoed Amaya.

“She will be a wonderful judge,” he added.

–Editing by Nicole Bleier.

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

We need MORE NDPA “practical scholars” like Judge Martínez-Olguín — MANY MORE — on the Federal Bench — at ALL levels! The place where the NDPA can make the most immediate positive impact is at EOIR! That’s why I’m urging NDPA members to get those applications in for current Immigration Judge vacancies and all that come up in the future.

We’ve seen in the past few weeks, graphically, how horrible judging from unqualified right wing zealots appointed by Trump can destroy precious individual rights and freedoms in America. NOW is the time to “model” the positive impact that practical scholars committed to due process, immigrants’ rights, and excellence in decision-making can have on American justice — starting at the all-important “retail level!”

🇺🇸 Due Process Forever!

PWS

04-22-23

🤯 ASYLUM SEEKERS @ THE BORDER NEED DUE PROCESS & COMPASSION — BIDEN ADMINISTRATION PLANS TO DELIVER DETERRENCE, DETENTION, DEPORTATION, DUMBNESS! — “The right to seek asylum, even though it is recognized in international law, is not being upheld.”

 

Melissa Del Bosque
Melissa Del Bosque
Border Reporter
PHOTO: Melissadelbosque.com
Marisa Limón Garza, Executive Director of Las Americas
Marisa Limón Garza, Executive Director of Las Americas
PHOTO: The Border Chronicle

Melissa Del Bosque in The Border Chronicle:

https://open.substack.com/pub/theborderchronicle/p/the-right-to-seek-asylum-in-el-paso?r=330z7&utm_medium=ios&utm_campaign=post

 

The Right to Seek Asylum in El Paso: A Q&A with Marisa Limón Garza, Executive Director of Las Americas

Marisa Limón Garza is executive director of the nonprofit Las Americas Immigrant Advocacy Center in El Paso, Texas. Founded in 1987 to aid refugees from the civil wars in Central America, Las Americas has provided legal representation to thousands of refugees and asylum seekers. Today, the staff of 19 is adapting to the growing, complex needs at the second-busiest port of entry for asylum seekers, after San Diego. Limón Garza, a native El Pasoan, talks about the challenges the organization faces as the United States rejects asylum law. “We’re seeing more expressions of xenophobia towards migrants on both sides of the border,” she said.

Las Americas has been serving migrants and asylum seekers since the 1980s. How has the population you serve changed since then?

The population that we started off serving was mostly Central American people seeking asylum. That population was our main focus. Over time, it’s shifted. For a long time, we’ve had a focus on women who were impacted by domestic violence or gender-based violence. We continue to have a community program specifically for crime victims. And so that has been something that we’ve persisted with. And then now we’re also working with people in the detention center setting. So, it’s evolved over time to meet the needs of immigrants and migrants.

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Are you seeing more people than ever? Or the same?

Right now, there are limitations on how many services we can provide, because of the number of attorneys that we have on staff, which is four. Attracting talent at the nonprofit level can be hard. It’s also a challenge in a community like ours that doesn’t have a law school. But we are seeing many people come for services. Especially due to the policies from the Trump administration and now the Biden administration. The need continues to grow. We are contacted by people all the time seeking assistance. And it’s more than we can actually serve.

What are the challenges you’re seeing with the populations you’re helping?

The challenges are related to the ways that the policies are being implemented. The people in our detained program have been focusing on a strategy of getting people out of detention on bond, because they’ll have a much higher chance of getting asylum when they have access to representation outside the detention center setting. But that’s become a lot more challenging in the past three months. There’s been a shift. Judges are not allowing people to be released on bond. And so that’s something that we are monitoring. We’re now taking on more cases for full representation through the asylum process with some people. So that’s a shift for us.

Governor Greg Abbott’s Operation Lone Star was extended to El Paso. How has it affected your community?

Operation Lone Star has been in our community since the city declared an emergency in December. It certainly has changed the dynamic with the more militarized presence and more enforcement. Visually, there’s more razor wire, more physical barriers, more obstacles. And the DPS squad cars everywhere.

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Can you talk about the CBP One app? I was in Reynosa, Mexico, recently. There were a lot of complaints about the app from asylum seekers, saying it doesn’t work. What are you experiencing in Ciudad Juárez with CBP One?

Our team has been helping folks get connected to the app and working with the Chihuahua state government in their COESPO office. Through that, we’ve been able to support over 662 people trying to access the app. It is challenging, even with the great Wi-Fi that’s available at COESPO. And it’s certainly been difficult as different versions of the app come out. There’s new glitches or glitches that didn’t happen before. Recently, there was a glitch where people were being notified on their screen that they needed to be north of the center of the country to secure an appointment. And of course, these people were applying from Ciudad Juárez, so it should have automatically included them, but they were being bumped out. Things like that continue to be challenges for people.

Are you having success with the app? Are some people getting through?

A minimal number. It’s not to the extent that we would like, but some people have secured appointments for themselves and their families.

Does frustration with the app lead asylum seekers to gather at ports of entry?

I think it’s the combination of rumors being shared about when people can access the port along with a level of frustration with the app. Combined, it creates a situation where people have this growing frustration, and they’re wanting to move forward but can’t. So it’s certainly part of the dynamic. I wouldn’t say it’s the sole factor. But it certainly contributes to that feeling that people are facing.

. . . .

Have conditions become more precarious for migrants arriving in Ciudad Juárez?

I think this has fomented because so many migrants have been coming towards the ports of entry. And when they go to the ports, some of those ports decide to close. That’s caused more of a challenge between community members and the migrants themselves. We’re seeing more expressions of xenophobia towards migrants on both sides of the border. And so that’s something that may have always existed but wasn’t as spoken out loud. Now it seems to be ratcheting up, although there’s still the presence of people who want to welcome and support migrants.

What future problems or issues do you see coming down the road?

I foresee challenges if we continue with the CBP One app. If that’s the only way people can access protection, then it really limits asylum. We would prefer that people be able to access a port of entry, claim their credible fear, and seek protection. We’re also mindful of the transit ban that is likely to go into place and will cause a lot of difficulty. People are supposed to seek asylum in the first country they cross through before seeking asylum here, but many of those countries have overrun asylum systems already. Adding to that challenge are the geopolitics as many different countries seem to be working with the United States to wall off access. This means that vulnerable people have far fewer places to turn to. The right to seek asylum, even though it is recognized in international law, is not being upheld.

What are solutions that you wish would be enacted right now by the U.S. and Mexican governments to fix things at the border?

We’d like there to be more transparency with border communities, at all levels, to ensure that plans are incorporated into the community, and there’s clear understanding of how they will work. Right now, there’s no clear information on what’s going to happen on May 11 [when Title 42 ends], and it’s less than a month away. We’d also like to see attention to the backlog of asylum claims within the courts, because there are many years that pass before someone can get access. Also reduce the time it takes to get a work permit. Right now, it takes at least six months to a year. That makes it riskier for people who must take more dangerous jobs and do things off the record. It’s important for people to earn a living and support their loved ones in a dignified way.

. . . .

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

Read the full interview at the link.

Think the Biden Administration is paying attention and has used their 2+ years in office to work with experts to be ready to welcome legal asylum seekers excercising their rights upon the inevitable end of the Title 42 charade?  Not a chance!

https://www.washingtonpost.com/nation/2023/04/20/homeland-security-border-mayorkas/

Department of Homeland Security Secretary Alejandro Mayorkas said Thursday that the Biden administration plans to announce preparations across the U.S.-Mexico border next week in anticipation of an influx of migrants after the White House lifts pandemic-related restrictions on May 11.

Mayorkas declined to provide details about the government’s efforts but said immigration detention facilities would have additional beds available to hold migrants facing possible deportation.

“I think next week we’ll have more to say about our preparation and some of the things we are going to be doing,” Mayorkas told reporters at DHS headquarters in Washington.

. . . .

Since March 2020, DHS has leaned on the Title 42 policy as its primary enforcement tool, expelling more than 2 million migrants back to Mexico or their home countries. But Biden officials face pressure from immigrant advocates and some Democrats calling for an end to the policy they view as a carry-over from the Trump administration’s harsher approach.

DHS officials further blame the Title 42 policy for encouraging repeat illegal crossing attempts because migrants don’t face the threat of federal prosecution and jail time that they would under standard immigration rules. Lifting Title 42, Biden officials say, is key to restoring the legal consequences they need to deter illegal entries.

. . . .

Miller, the acting CBP commissioner, said officials will attempt to tamp down the surge with “enhanced expedited removal” — a fast-track deportation process for those who don’t qualify for humanitarian refuge.

But, he cautioned, “it will take time” for deportations to have a deterrent effect.

https://www.washingtonpost.com/nation/2023/04/20/homeland-security-border-mayorkas/

Deterrence, deterrence, deterrence = failure, failure, failure! It’s been failing for decades and is guaranteed to do so in the future! Governments can’t deter, detain, and deport their way out of humanitarian situations. 

But, the the Biden Administration is happy to waste billions and unnecessarily endanger human lives making the same old mistakes over and over.

Not a mention of what REALLY would work: Honoring our legal obligations and enforcing the law by inviting asylum seekers to apply at ports of entry; making the system efficient and user friendly; providing wide access to representation; and timely and robustly granting asylum to qualified applicants under generous standards enunciated by the Supremes and the BIA decades ago but widely ignored, often mocked, in practice!

If, contrary to the Administration’s predictions of doom, gloom, and “planned failure,” the legal system works at the border, it will be due to folks like Marisa Limón Garza and NGOs forcing the law to work as it should — no thanks to out of touch politicos and bureaucrats in the Biden Administration and to GOP nativists like Abbott.

🇺🇸 Due Process Forever!

PWS

04-21-23

⚖️👩‍⚖️ EOIR NEWS: HON. SHEILA McNULTY NEW CHIEF IMMIGRATION JUDGE!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Can new Chief Immigration Judge Sheila McNulty get this poor little fella back on his feet? Only time will tell!

Sources report that A.G. Merrick Garland has appointed Judge Sheila McNulty to be the Chief Immigration Judge at EOIR. Previously, she was the Regional Deputy Chief Immigration Judge. 

The position had been vacant since the resignation of the previous Chief Immigration Judge, Tracy Short, in July 2022. Unlike Short, who came from ICE with no prior judicial experience, Chief Judge McNulty has been an Immigration Judge since 2010. For the last reported period that she was an Immigration Judge at the Chicago Immigration Court, 2014 -2015, Judge McNulty granted 52.3% of asylum cases, according to TRAC. She became an Assistant Chief Immigration Judge in 2015, and was promoted to Regional Deputy Chief Immigration Judge in 2021.

Her official EOIR bio is below.

Sheila McNulty
Regional Deputy Chief Immigration Judge [Now Chief Immigration Judge]

Sheila McNulty was appointed as Regional Deputy Chief Immigration Judge in March 2021. Judge McNulty received a Bachelor of Arts in 1984 from Miami University of Ohio and a Juris Doctor in 1991 from New England School of Law. From November 2015 to March 2021, she served as an Assistant Chief Immigration Judge, and during this time, from February 2020 to March 2021, she also served as Acting Deputy Chief Immigration Judge for the West. From October 2010 to November of 2015, she served as an Immigration Judge at the Chicago Immigration Court. From 2000 to 2010, Judge McNulty served as a Special Assistant U.S. Attorney with the former Immigration and Naturalization Service (INS) and U.S. Immigration and Customs Enforcement, in the Chicago Office of the U.S Attorney’s Office for the Northern District of Illinois. From 1991 to 2000, she served as a trial attorney for the former INS, entering on duty through the Attorney General’s Honors Program. From 1985 until 1988, Judge McNulty worked as a community activist and organizer in Cambridge, Massachusetts. Judge McNulty is a member of the Illinois Bar.

Congratulations and good luck to Chief Judge McNulty in her new leadership role. The Immigration Judge program needs help — lots of it! 

Anti-asylum attitudes among some judges, wildly inconsistent decisions, “asylum free zones,” poor training, unprofessional conduct, lack of expertise, little quality control, emphasis on “productivity over due process,” inadequate law clerk support, over-reliance on oral decisions, debilitating backlogs, shortage of courtrooms and chambers, unreliable technology, “Aimless Docket Reshuffling” to meet the agenda of DOJ politicos, poor relations with the bar, lack of a due process vision, and cratering morale are among the many existential problems facing the new Chief Judge!

🇺🇸 Due Process Forever!

PWS

04-19-23

☠️🤮 TAKE MY UPDATED “TOUR” OF AMERICA’S STAR CHAMBERS, A/K/A “EOIR” — “Due Process Doesn’t Live Here Any More!”

Star Chamber Justice
“Justice”
Star Chamber
Style

DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

“Immigration 101”

Renaissance Institute

 Notre Dame University of Maryland in Baltimore

April 18, 2023

 

I.  INTRODUCTION

 

Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here. 

 

Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.

 

Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.

 

However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.

 

Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.” 

 

II. CAREER SUMMARY

 

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed. 

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers! 

 

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.” 

 

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]  

The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.

 

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts. 

 

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! 

 

In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel.  I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations. 

 

Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel. 

 

The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. 

 

Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role. 

 

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”). 

 

I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. 

 

I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement. 

For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.

 

By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

 

In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA. 

 

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First. 

 

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa. 

 

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational. 

 

She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.  Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely! 

 

Among other things,  as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore. 

 

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2]  The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board. 

 

In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women. 

 

During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. 

 

In 2001, under pressure from the incoming Bush Administration and new Attorney General John 

Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016. 

 

So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

 

I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor. 

 

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.

 

III. THE DUE PROCESS VISION

 

Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme. 

 

Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket. 

 

There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.

 

The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration. 

 

Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.” 

Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.

 

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer. 

 

Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3] 

Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.

 

An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need. 

 

To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.  

Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.

 

These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled. 

 

It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.

Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.” 

 

It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law.  I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.

 

Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.

 

IV. THE ROLE OF THE IMMIGRATION JUDGE

 

Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. 

The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much.   And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.

 

We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.

 

Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers

The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge: 

Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]

 

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description:  “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]

 

An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]

 

Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on. 

Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!

 

One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years. 

V. RECLAIMING THE VISION 

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?  

 

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end the improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers. 

 

Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).  

Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court. 

You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]

But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.

Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. 

We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.

 

Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.

In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!

Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.

 

 

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system. 

EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”

 

 

Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration
Court.  A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. 

 

All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.

 

Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation. 

 

Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented  “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.

Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.

 

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases. 

 

The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted.  We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.

 

Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system. 

That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system. 

VI. GETTING INVOLVED  

Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.  

    

They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.

 

Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet. 

VII. CONCLUSION 

In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.

I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty. 

 

I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision. 

My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values. 

 

It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country!  It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.

 

The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come. 

 

Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!

 

Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!    

 

Thanks again for inviting me and for listening. 

  

(04/19/23) 

 

[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

[14] See 8 C.F.R. § 1208.13(b)(1).

[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?”   Does this represent the best that American justice has to offer?

© Paul Wickham Schmidt 2023, All Rights Reserved

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

We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!

Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!

We can’t wait for change from above from those who are indifferent to the rule of law, human lives, and our nation’s future! NDPA members need to get on the Immigration Bench and start changing culture and outcomes at the “retail level.” See, e.g., https://immigrationcourtside.com/2023/04/15/%f0%9f%87%ba%f0%9f%87%b8%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%a8%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%a7%91%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%e2%9a%96%ef%b8%8f/

The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.

It’s unlikely that well-qualified, expert, due-processed-focused judges will be generating scathing public “kickbacks” from the Article IIIs. See, e.g., https://immigrationcourtside.com/2023/04/17/%f0%9f%a4%af2d-cir-savages-bias-anti-asylum-precedent-matter-of-y-i-m-27-i-n-dec-724-b-i-a-2019-phantom-discrepancies-lunch-over-lives-no-time-to-lis/

Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.

The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.

These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.

While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”

The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!

Head in the Sand
Bury your head in the sand
Sander van der Wel from Netherlands
Creative Commons Attribution-Share Alike 2.0
It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!

🇺🇸 Due Process Forever!

PWS

04-19-23

🤯2D CIR. SAVAGES BIA’S ANTI-ASYLUM PRECEDENT Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)! — Phantom Discrepancies, “Lunch Over Lives,” No Time To Listen, Staggering Due Process Violations, Legal Incompetence “Outed” By Appeals Court! — “[T]he adverse credibility finding relies, in large measure, on legal error by the agency, including misstatement and mischaracterization of the facts in the record and flawed reasoning . . . [and] the IJ’s unjustified refusal to allow Malets to present readily available witness testimony deprived him of a full and fair hearing.”

Kangaroos
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)

https://www.ca2.uscourts.gov/decisions/isysquery/39426c08-21a5-4276-9155-8503e595b65c/1/doc/19-4216_opn.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-vacates-matter-of-y-i-m–27-i-n-dec-724-b-i-a-2019#

“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”

[Hats way off to John Giammatteo!]

John Giammatteo
John Giammatteo, Esquire
Clinical Teaching Fellow
Georgetown Law
PHOTO: Georgetown Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!

Notably, as Courtside readers know, this is hardly the first time during Garland’s tenure that the BIA has been”flagged” for essentially “fabricating” adverse credibility findings to deny asylum in a “life or death” case! See, e.g., https://immigrationcourtside.com/2022/07/23/%e2%9a%96%ef%b8%8f-5th-cir-rebukes-bia-for-fabricating-adverse-credibility-finding-to-deny-asylum-how-long-can-garland-ignore-this-poor-judicial-performance/.

Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!

There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!

The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!

“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting, institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!

Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason —  even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!

The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”

Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?” 

No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!

It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!

A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!

Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!

Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”

One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!

As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:

If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.

Come on, man!

The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”

Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.

Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!

Magic Hat & Wand
Magic Hat & Wand
Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR?
PHOTO: Public Realm

Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!

Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”

Alfred E. Neumann
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts!
PHOTO: Wikipedia Commons

Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!

I was told by some with  knowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!

So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!

Yet, recent “practical scholarship” shows that providing JLCs to every IJ and diminishing the reliance on “contemporaneous oral decisions” would significantly increase due process at EOIR at a very modest systemic cost. See, e.g.https://immigrationcourtside.com/2022/08/31/☠️⚖️failng-justice-immigration-judges-👩🏽⚖️-need-individual-law-clerks-not-more-falls-church-bureaucracy-failed/

Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.

All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾‍⚖️👨🏼‍⚖️👩🏾‍⚖️🧑🏻‍⚖️

See, e.g., https://immigrationcourtside.com/2023/04/15/%f0%9f%87%ba%f0%9f%87%b8%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%a8%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%a7%91%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%e2%9a%96%ef%b8%8f/

🇺🇸 Due Process Forever!

PWS

04-15-23

🇺🇸⚖️🗽👨🏾‍⚖️🧑🏻‍⚖️👩‍⚖️👩🏾‍⚖️👨🏼‍⚖️ WANTED! — GREAT JUDGES WITH IMMIGRATION, HUMAN RIGHTS, AND DUE PROCESS EXPERTISE TO UPGRADE AMERICA’S STRUGGLING “LIFE OR DEATH” COURTS! — Apply To Become A U.S. Immigration Judge NOW & Show How NDPA  “Practical Scholars” Can Inspire The U.S. Justice System To Finally Achieve “Equal Justice For All!” 😎

I want you
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it!
Public Domain

https://www.justice.gov/legal-careers/job/immigration-judge-25

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IMMIGRATION JUDGE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR)

OFFICE OF THE CHIEF IMMIGRATION JUDGE

ATTORNEY

5107 LEESBURG PIKE

FALLS CHURCH, VA 22554

UNITED STATES

IJ-11901554-23-VG

About the Office:

This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge.

EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.

EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.

Job Description:

Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.

Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations.

Qualifications:

In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:

  • Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

  • Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the federal, state or local level. Relevant experience may include that gained in civil, criminal, or military cases, as well as in any case in which a formal procedure was initiated by a government administrative body.

NOTE: Qualifying experience is calculated only after bar admission.

Successful applicants will have a strong combination of experience demonstrating that they will perform at the level of competence, impartiality, and professionalism expected of an Immigration Judge. For more information about relevant experience and knowledge, please see the “How You Will Be Evaluated” section.

Additional information

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Additional positions may be filled from this announcement within 90 days of certificate issuance.

Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.

One or more court location(s) in this announcement is under construction and may not be open for some time. If selected for a court that is not physically open, you will be temporarily assigned to a court currently open, as needed. If selected, once your court has opened, your duty station will be adjusted to reflect your new court location.

There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation (see the “Required Documents” section).

Salary:

$149,644 – $195,000 per year

Travel:

50% or less – You may be expected to travel for this position

Application Process:

To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Job: USAJOBS – Job Announcement . Please read the announcement thoroughly. You must submit a complete application package by 11:59PM (EST) on 4/25/2023, the closing date of the annoucement.

Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.

Application Deadline:

Tuesday, April 25, 2023

Relocation Expenses:

Not Authorized

Number of Positions:

Multiple vacancies in multiple locations

Updated April 14, 2023

*         *         *

Department Policies

Equal Employment Opportunity:  The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer.  Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor.  The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.

Reasonable Accommodations:  This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency.  Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

Outreach and Recruitment for Qualified Applicants with Disabilities:  The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements.  Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority.  Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.

Suitability and Citizenship:  It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment.  Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.

Veterans:  There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdf for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).

USAO Residency Requirement:  Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof.  See 28 U.S.C. 545 for district specific information.

*         *         *

This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.

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

Storm the gates! Show the world what REAL due process and adherence to the generous remedial purposes behind the Refugee Act of 1980 looks like! Make “Equal Justice For All” a reality, not just a “throwaway line!”

The “rule of law” is about fundamental fairness — it’s  NOT about turning our justice system into a “deterrent” or fulfilling the enforcement agenda of DHS! The latter is a PARTY, just like the individuals seeking justice before these courts.  Put to work your comprehensive knowledge, experience, courage, persistence, and skills in forcing a fundamentally biased and unfair system to do justice for individuals —  in spite of itself.

EOIR doesn’t have to be a disaster! “Institutionalize” due process, decisional excellence, and fundamental fairness!

Apply, apply, apply! Change the world for the better! Save lives at the most important level of our justice system — the “retail level!”

🇺🇸 Due Process Forever!

PWS

03-15-231

⚖️🗽🇺🇸 SPEAKING OUT: “MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25”

MATTHEW 25
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary.
Wolfgang Sauber
Creative Commons Attribution-Share Alike 4.0

MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

 Westminster Presbyterian Men’s Breakfast

April 14, 2023

I. INTRODUCTION: THE MESSAGE OF MATTHEW 25

Welcome. Thank you for inviting me and for coming out this morning. 

Of course, I want to hold my friend and fellow “Badger” Dudley, the Men’s Group, honored guests, and anybody else of any importance whatsoever harmless for my remarks this morning. While I have borrowed liberally from the ideas and inspirations of others, I take sole responsibility for the views expressed in my presentation.

I don’t usually start my talks with a Biblical quote. But, since this is a church men’s breakfast, we are in the holy season, and my topic is integrally tied to Judeo-Christian values, I want to read from Matthew 25, verses 34-46:

34 Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;

35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,

36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’

37 Then the righteous will answer him, “Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?

38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?

39 And when was it that we saw you sick or in prison and visited you?’

40 And the king will answer them, “Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’

41 Then he will say to those at his left hand, “You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;

42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,

43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’

44 Then they also will answer, “Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’

45 Then he will answer them, “Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’

46 And these will go away into eternal punishment, but the righteous into eternal life.”

II. OVERVIEW

The last time I was with you, five years ago, I described the mess and rampant unfairness in our immigration system. I’d like to say that those times are behind us: That we have restored the rule of law, enhanced due process, and acted, as a nation, in a manner that showed adherence to those passages from Matthew.

But, unfortunately, I can’t do that. Not yet! Despite many promises to fix the mistakes of the past and to do better in the future, and a few successes, the current Administration has, in my view, disturbingly failed to deliver on our obligation to treat “the stranger” and “the other” — in other words, some of “the least of these” — fairly and with human dignity. Nowhere is this more harmful, discouraging, and threatening to both human life and our democracy than at our borders. 

The most vulnerable among us, asylum seekers, who ask for little other than to be treated fairly and humanely under our laws, are still being victimized by dysfunctional bureaucracies more intent on deterring and rejecting than on protecting!

I’m going to tell you truths that some find uncomfortable; briefly summarize our current and proposed “built to fail system” at the borders; and tell your why it doesn’t have to be this way! 

I’m going to share with you some ideas from legal and humanitarian experts on how our nation could do a far better job for ourselves and for refugees just by more creatively, boldly, and courageously exercising authorities under existing law. In other words how we as a nation could reflect on Jesus’s parable in Matthew and make it a reality.

III. UNCOMFORTABLE TRUTHS

Let me tell you a few truths that the “false prophets” find uncomfortable.

First, there is an internationally recognized right to seek asylum. Our law states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including [someone] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum.” [INA, 208(a)].

Second, according to the 5th Amendment to our Constitution, “no person . . . shall be . . .  deprived of life, liberty, or property without due process of law.” Note that it says “person,” not citizen or “lawfully present non-citizen.”

Third, according to our Supreme Court, asylum laws are to be applied generously, so that even those with just a 10% chance of suffering persecution could qualify. [INS v. Cardoza-Fonseca]. In other words, according to the Board of Immigration Appeals, the highest administrative tribunal in immigration where I once served as an appellate judge and Chair, asylum can be granted “even where [the likelihood of persecution] is significantly less than clearly probable.”  [Matter of Mogharrabi].

Additionally, the Handbook of the United Nations, whose Refugee Convention we adopted and which forms the basis for our refugee and asylum laws, says that because of the traumatic situation of refugees and the understandable difficulty they have in gathering and presenting “evidence,” refugees and asylum seekers should be given “the benefit of the doubt” in adjudications.

Fourth, by definition, refugee situations are driven by a variety of life-threatening forces occurring in sending countries, most of them outside our immediate control. Therefore, attempts to use harsh applications of our laws, intentionally “user-unfriendly” procedures, and punishment such as prosecution, imprisonment in life-threatening conditions, and even family separation as “deterrents” are ultimately doomed to failure. I’ve personally watched this “play out” during my five decade career in immigration.

Friends, human migration is a reality as old as humanity itself. It existed long before the evolution of the “nation state” and will continue as long as there is human life on this earth. 

Consequently, the idea of some that we can unilaterally cut off or end human migration solely by our own cruel, repressive, and unfair actions is absurd. As I always say, “We can diminish ourselves as a nation, but that won’t stop human migration.” 

Fifth, America needs immigrants. Refugees and asylees are part of our legal immigration system. They should be treated as such and welcomed, rather than being dehumanized and viewed as a “loophole,” a “threat,” or  “invaders.”

Unhappily, in my view, most of our past and current policies toward refugees and asylum seekers run afoul of these fundamental truths. Worse still, legislators, policy makers from both parties, and even Federal Judges have been willing to run roughshod over these fundamental principles when they believe it is personally, politically, financially, or even professionally expedient.

IV.  CURRENT BORDER POLICIES 

Currently, our border asylum policies, largely “holdovers” from the Trump Administration, are overwhelmingly weighted toward improper, and ultimately futile, “deterrence.” This reflects deeply imbedded nativist, often racist, views by those holding power.

Our Government currently claims that our border is “closed” to legal asylum seekers, as it has been since March 2020. Under a vestige of Trump-era policy, known as Title 42, the legal processing of asylum applicants and their admission has been suspended based on a transparently pretextual, manufactured claim of necessity to protect America from COVID.

This allows many individuals to be excluded from the U.S. without any legal process and without having a chance to make a claim for asylum or other legal protection. Others are allowed to come into the U.S. under highly discretionary — most would say arbitrary — opaque “exceptions” to Title 42 that are within the sole discretion or DHS officials without any meaningful review. 

The result is a mess. Some refugees are returned to Mexico or their home countries where they are subject to abuse, extortion,  exploitation, crime, torture, and sometimes death. 

Others, who might or might not be refugees, are allowed into the U.S., often with inadequate screening and without clear instructions as to what they are to do next. Because the Biden Administration didn’t establish any uniform nationwide resettlement system for those allowed in, they have been subject to cruel political stunts. 

One of the most well-publicized of these has been the so-called “voluntary relocation” of individuals from the border by the governors of Texas, Florida, and, until the recent election, Arizona. They are sent by these governors, without coordination or notice, to supposedly “liberal” cities such as New York, Chicago, Denver, and Washington, D.C., in the calculated hopes of overwhelming community nonprofit organizations, creating chaos, and thereby causing a “backlash” against asylum seekers and the Administration.

V. BIDEN’S LARGELY MISGUIDED PROPOSALS

The Biden Administration has made some rather halfhearted efforts to end Title 42. To date, these have been blocked by right-wing Federal Judges, mostly Trump appointees. 

But, it now appears that with the overall “COVID emergency” ended by President Biden, Title 42 will also end on May 11, barring further obstructionist litigation. 

Many of us had hoped that after more than two-years to work on regularizing and normalizing asylum processing, the Biden Administration would have a “ready to implement” plan for restoring order, fundamental fairness, and due process to asylum adjudication. 

But, sadly, this is not the case. The Biden Administration has actually proposed what many of us consider to be “gimmick regulations” to take effect upon the expiration of Title 42. These proposals actually build upon, and in some cases expand, unfair, restrictive, ineffective policies used by the Trump Administration to “deter” asylum seekers.  

Obviously, many experts have opposed these measures. A group of which I am a member, the Round Table of Former Immigration Judges, filed an official comment in opposition to these proposals. 

In it, we stated: 

[T]he proposed rule exceeds the agencies’ authority by seeking to create a ban on asylum that contradicts Congressional intent and international law. As former Immigration Judges, we can confidently predict that the rule would result in individuals being erroneously deported even where they face a genuine threat of persecution or torture. We urge that the rule be withdrawn in its entirety. 

Notably, approximately 33,000 individuals and organizations joined us in submitting comments in opposition to these regulations. Among these is the union representing the DHS Asylum Officers who claim, with justification, that applying these proposed provisions would require them to violate their oath to uphold the law.

At the heart of the Administration’s proposed changes is a new bar for those who apply for asylum other than at a port of entry and who can’t show that they have applied and been denied asylum in a country they “transited” on the way to the U.S.

Absurdly, this includes some of the most dangerous countries in the world, without well-functioning, fair asylum systems: Mexico, Honduras, Guatemala, El Salvador, Nicaragua, Colombia, being among those often transited. 

This is also a rather obvious contradiction of the statutory command I read earlier that individuals can apply for asylum regardless of whether they arrive at a port of entry.

While there are some “emergency exceptions” to these new bars, they are narrow and will be almost impossible for individuals who have made the long, difficult, and dangerous journey to establish. 

The proposal also improperly raises the statutory standards for preliminary screening of these individuals by Asylum Officers from “credible fear” to “reasonable fear.” This improperly weaponizes “gatekeepers” to block access to the asylum adjudication system. 

Another “centerpiece” of the proposal is to require all asylum applicants arriving at ports of entry to schedule in advance an appointment for asylum screening using a new app called “CBP One.” Unfortunately, according to those actually at the border with asylum seekers, CBP One is “not quite ready for prime time.” It’s plagued by technical glitches, including disconnection, inability to schedule appointments for all family members, failure of the “facial recognition” software with some ethnic groups, and issues of usable wi-fi in Mexico and cell phone access among some applicants. 

As Senator Cory Booker (D) of New Jersey stated following a recent trip to the border:  

“Even if the CBP One app [were] as efficient, user friendly, fair, and inclusive as possible – which I hope one day it will be – it would still be inherently discriminatory.” 

Additionally, the “appointments” currently available for asylum seekers are woefully inadequate and often are exhausted shortly after being posted, leaving legal asylum seekers frustrated and stranded in deplorable conditions near the Mexican border. 

The Administration has recognized the need to encourage applications for refugee status in or near the countries from which refugees flee. But, instead of providing for more robust refugee admissions, the Administration has circumvented existing refugee laws by creating “special programs” for nationals of five countries to apply for temporary “parole into the U.S.”

This process is restricted to only five countries: Venezuela, Nicaragua, Haiti, Cuba, and Ukraine. The numbers of paroles are limited, and the criteria do not necessarily relate to refugee qualifications, relying heavily on the ability to obtain a U.S. sponsor in advance.

While this undoubtedly benefits some nationals of these countries, it does not prioritize refugees and it contains numerical limitations that do not apply to those seeking asylum. The arbitrary, highly discretionary nature of the parole determinations is combined with the lack of any statutory mechanism for conferring green cards upon the expiration of parole. This “limbo” situation recreates many of the ad hoc factors of parole programs prior to the Refugee Act of 1980 that Congress specifically intended to eliminate. 

Another so-called “feature” of the proposed system being touted by the Administration is the negotiated ability to remove up to 30,000 non-Mexicans per month to Mexico. This is despite the well-publicized dangers awaiting them there, including the recent murders of American tourists and the “slow roasting” of 39 detained asylum seekers in a Mexican detention center fire.

The Biden Administration is also considering re-instituting so-called “family detention” and increased criminal prosecutions of those who cross the border illegally. These policies, also employed by the Trump Administration, have proved highly problematic in the past.

Then there is the mess in the individual asylum adjudication system that was weaponized and largely destroyed by the Trump Administration. Unqualified personnel, perceived to be committed to denying asylum above all else, were selected both at DHS and for Immigration Judge positions at the Immigration Courts, known as EOIR in the Department of Justice. Both the Asylum Office and EOIR are now incredibly backlogged.

As currently operated, the Immigration Courts feature a number of so-called “asylum free zones” where asylum is almost never granted by judges who are renowned for denying 90-100% of the asylum claims, far above the already grossly inflated “national average.” 

Even when asylum is granted, it too often depends more upon the attitude and background of the individual Immigration Judge assigned than on the merits of the case. The U.S. Courts of Appeals regularly return cases to EOIR after pointing out very basic legal and factual errors committed by the latter in their undue haste to deny protection!

The current dysfunction at EOIR violates the commands of the law, that I read to your earlier, for due process, fairness, generosity, and applying the benefit of the doubt to asylum adjudications.

Indeed, attempting to avoid the Immigration Courts, now with an astounding 2 million backlog of pending cases, at least 800,000 of them involving asylum, appears to be one of the “drivers” of Biden Administration asylum policies. Unfortunately, in their two years in office, this Administration has done little to reform the Immigration Courts to improve expertise, efficiency, and due process and to repair the systemic damage done during the Trump Administration.

To add insult to injury, incredibly, the Biden Administration just “put on hold” one of the few potential improvements they had made to the asylum process: Allowing Asylum Officers to grant asylum to border applicants who pass credible fear. This would actually bypass the EOIR backlog without diminishing anyone’s due process rights. After pushing this change as potentially “transformational,” the Administration totally blew the implementation in a stunning show of ineptness and lack of basic preparation.

V. BETTER SOLUTIONS THROUGH EXISTING LAW

In my view, and that of other experts, we are once again heading for a systemic failure to do right by refugees and asylum seekers. The primary reason is that, in contravention of the law, the lessons of the Holocaust, which gave birth to the Refugee Convention, and the scriptures, we view refugees — “the stranger in need” — as “problems” or “statistics” to be “deterred,” “punished,” “discouraged,” and “denied.” 

This is a wrong-headed — and fundamentally un-Christian — view. Refugees are fellow humans — like us — in need. They are legally entitled and deserving of our protection. 

But, beyond that, they are an important source of legal immigration that our country was built upon and continues to need. Indeed most of the ancestors of those of us in this room probably came to this country fleeing or escaping something, regardless of whether or not it would have met today’s refugee definitions.

The border doesn’t have to be a source of disorder and embarrassment to our nation. There are better alternatives, even under existing law. 

My experience tells me that if, instead of straining to improperly deter refugees, we use available tools to construct a fair, timely, generous, practical, expert, user-friendly legal system for refugees and asylees, the vast majority of them will use it. That will necessarily take pressure off the task of apprehending those seeking to evade the system. 

What I’m going to share with you are ideas for progressive, humane, constructive improvements developed and advocated by many experts and NGOs. Certainly, these are not just my ideas.

First, we must maximize use of the existing provisions for legal screening and admission of refugees processed outside the United States. Currently, those programs are overly cumbersome and far too anemic with respect to the Western Hemisphere, particularly for countries in the Northern Triangle of Central America that are traditional “sending countries.”

Refugees screened and approved abroad arrive at our borders with documents and immediate work authorization. They are also able to bring family members and have a clear statutory path to obtaining green cards and eventually citizenship. These are important factors missing from the ad hoc parole programs instituted by this Administration. 

Second, we need radical reforms of our Asylum Offices at USCIS and the Immigration Courts at EOIR. The “deadwood and nay sayers” who overpopulated these agencies during the Trump Administration must be weeded out and replaced with true subject matter experts in asylum, preferably with actual experience representing asylum seekers. 

There are many asylum cases, both among arriving applicants, and languishing in the largely self-created backlogs, that could and should be prioritized and rapidly granted. Better trained and qualified Asylum Officers should be encouraged to grant asylum at or near the border whenever possible. That avoids the need to “refer” cases to the backlogged Immigration Courts.   

Within EOIR, a great place to “leverage” reform would be at the BIA. That body was intentionally “packed” with some of the highest asylum-denying judges during the Trump Administration. Bringing in well-respected subject matter experts to set positive asylum precedents, establish and enforce best practices, and “ride herd” on the toxic “asylum free zones” and “deniers’ clubs” allowed to flourish among Immigration Courts would be a huge step forward.  

And, for those who are found not to have a credible fear of persecution, after a fair screening system and fair rules administered by Asylum Officers who are experts, the law already provides for “summary expedited removal” without resort to full Immigration Court hearings, thus avoiding that backlogged system. 

There is not, and has never been, a legitimate need to resort to Title 42 and other improper gimmicks, to deal with large migration situations. To the extent that one believes in the effectiveness of “deterrence” for those who do not have credible asylum claims, it’s built right into our existing law.   

Third, the Administration should be working with the private bar, NGOs, states, and local governments to maximize access to pro bono or low bono asylum representation. Currently, far too many adjudications take place either in detention centers in intentionally obscure locations or at out of the way ports along the border. 

Achieving representation needs to be a driving factor in establishing asylum processing. Indeed, studies have shown that representation not only dramatically improves results for asylum seekers but also virtually guarantees their appearance at all immigration hearings, without detention. It’s probably the biggest “bang for the buck” in asylum adjudication strategies. 

The Government should also be working to encourage and, where possible, fund innovative programs like VIISTA Villanova that train non-attorneys to be “accredited representatives” for recognized non-profit organizations representing asylum seekers.

Fourth, rather than expensive and inhumane detention prisons, the Government should establish a network of “reception centers” near the border and throughout the country. These could provide safe, sanitary, residential housing, education, and even work opportunities while individuals are being timely and professionally processed for asylum. They also could be matched with legal staff. 

These centers should be run by NGOs and other social service organizations with government funding. They would be a humane replacement for the privately run “detention centers” that have been the center of controversy and human rights abuses. 

Fifth, the government should work with NGOs, charitable organizations, and regional economic consortiums to establish orderly, effective resettlement programs in the U.S. that would match those granted refugee or asylum status with housing and employment opportunities in areas of America where there skills can be best utilized. 

Sixth, our government should continue to engage with the UN, other democratic nations, and economic development agencies to address the root causes of migration. 

There are many other great ideas out here in the private sector that are being largely ignored by our Government. While nobody disputes the desirability of structural changes in our immigration laws, we could drastically improve and humanize our response to refugee situations just by more creative and robust application of already existing authorities and the expertise available in the U.S. humanitarian and NGO sectors.  Approaching asylum as a humanitarian responsibility, rather than a law enforcement conundrum, is the key to escaping from the wilderness of failed “deterrence schemes” and creating  a better future for humanity. 

VI. CONCLUSION

I can sum up by quoting one of the members of what I call the “New Due Process Army,” Amy R. Grenier. She said, very perceptively, that stripped of all of its legalistic complexities,  “the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of.” I think that is also the message of the quote from Matthew 25 that I began with. 

When we ignore these pleas for help from the most vulnerable and instead dehumanize, or as I sometimes say “Dred Scottify” them, we not only endanger their lives, but we also diminish our own humanity. I’ve never found anyone who wanted to be a refugee. And, but for the grace of God, any of us could be a refugee, at any time, often when you are least expecting it.

The problem with asylum at the border is not the law. It’s the lack of will, moral courage, vision, creativity, competence, and basic skills from those charged with implementing the law. In reality, there is plenty of flexibility in the existing law to encourage refugees to apply outside the U.S., to fairly, timely, and generously process those arriving at the border who invoke our laws, and to expeditiously remove those who don’t belong in the asylum system. 

There is also plenty of legal authority to change inhumane and expensive “border jails” into “reception centers,” to increase the availability of pro bono representation, to resettle refugees and asylees in an orderly fashion, and to match the needs and skills of refugees and asylees with the needs of communities throughout the U.S.  

The real issue is why is our Government wasting time and resources on cruel, legally questionable, ultimately ineffective “deterrence gimmicks” rather than solving problems, protecting the lives, and recognizing the humanity of those in need? Matthew knew what’s the right thing to do! Why don’t our elected leaders and the bureaucrats working for them? 

I’ve shared with you some ideas for getting closer to “the vision of Matthew 25” in dealing with refugees and asylees. Of course, I haven’t solved the hard part — how to get the attention of politicians, legislators, bureaucrats, and judges who have largely “tuned out” the legal rights of refugees and other migrants and are all too prone to run from creative solutions, rather than embrace them. 

But, hopefully, I have helped to install the first step: For all of us to recognize that contrary to what many say, we can do better for refugees and we should make doing so one of our highest national priorities. How we treat “the most vulnerable — the “least of those among us” — does affect everything else in our lives and our nation’s well-being!

We need to improve the informed dialogue, stand behind our values, and insist that those who govern us do likewise. Thank you and, as we say in the New Due Process Army, due process forever!

(04-13-23.2)
 

 

🤯YOU’VE GOT TO BE KIDDING! — Bumbling  Administration “Cans” One Of Few Positive Changes In Asylum Adjudication Process!

 

Hamed Aleaziz
Hamed Aleaziz
Staff Writer
LA Times

https://www.latimes.com/politics/story/2023-04-12/biden-asylum-processing-rule-pause

Hamed Aleaziz in the LA Times:

The Biden administration will pause its signature effort to reform asylum processing at the border, Department of Homeland Security officials confirmed Wednesday.

The so-called asylum processing rule, which the administration launched with great fanfare in 2022, allowed asylum officers to grant and deny asylum to migrants at the southern border.

Administration officials say the pause is a temporary measure designed to ensure that the country’s immigration agencies are prepared for a potential increase in border crossings after the end of Title 42, a pandemic-era policy that allows border agents to quickly turn back migrants.

But critics say the pause signals President Biden’s latest move away from reforming the asylum process and back toward Trump-style restrictions at the southern border.

. . . .

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

Read Hamed’s complete’s article at the link.

Like the term “temporary,” a “pause” is a bureaucratic “term of art” used to deflect attention from what’s really happening. “Pauses” can last indefinitely. If, after two years to work on it, and touting it as a transformational change, the Biden Administration can’t put this fairly straightforward “no brainer” change into effect, it’s not obvious what the “right time” would be!

Granting much more asylum at the AO level nearer to the time of initial encounter is one way of gaining “leverage” and avoiding the EOIR backlog — without stomping on anyone’s rights!  The latter is key! 

I think most experts would say that it should have been much easier to implement this positive change than some of the new, tone-deaf, bone-headed “proposed restrictions” on asylum, re-instituting dehumanizing and problematic “family detention,” and removing 30,000 non-Mexicans per month to potential danger, exploitation, and death in Mexico. These moves are guaranteed to provoke strong opposition as well as generating some rather unhappy publicity when  the situation in Mexico gets out of control, as it inevitably will.🏴‍☠️

Remember folks, the Biden Administration claimed a year ago that it wanted to terminate Title 42 at the border. After an additional year, they still don’t have a plan for following the law! No wonder some critics perceived that the Biden Administration was actually relieved when a right-wing Federal Judge abused his authority to block the ending of Title 42.

Clown Car
Most experts doubt that the Biden Administration has the “right team” (pictured above) in place to restore fair, competent, due-process-compliant asylum adjudication at the border or anywhere else!
PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.

Instead of preparing, planning, and “knocking some heads” within the bureaucracy, the Administration has squandered the last year thinking up new anti-asylum gimmicks, rather than making the long-overdue changes at EOIR, the Asylum Office, and the Refugee Program necessary to admit refugees legally, robustly, and timely — in other words to restore the rule of law as they had promised.

Oh, for some competence, backbone, and leadership in the Biden Administration’s immigration policy bureaucracy! Never has America needed the Ambassadorial Level position of Refugee Coordinator more than now! Unfortunately, that important role established by the Refugee Act of 1980 was “swallowed and digested” by a hostile bureaucracy years ago. Alex Aleinikoff, where are you when your country needs you?

🇺🇸 Due Process Forever!

PWS

03-13-23

👂📢 ATTN NDPA: Attend An EOIR “Listening Session” On the All-Important Topic Of “Enhancing Pro Bono Representation!” 

Hey Listen
Hey listen!
Quinn Dombrowski from Berkeley, USA
Creative Commons Attribution-Share Alike 2.0

EOIR to Host Listening Session Seeking Input on Enhancing Pro Bono Representation

SUMMARY: The Executive Office for Immigration Review (EOIR) will host six listening sessions to facilitate conversations with law school clinical communities nationwide about creating best practices for practical and clinical representation and empowering immigration judges and staff to leverage the pro bono resources law schools provide. EOIR’s objective is to build the capacity of representation in immigration court proceedings by cultivating and maintaining interest in pro bono advocacy.

As the “Access EOIR” initiative continues, EOIR seeks to engage law school clinical communities about their needs. During the meeting, EOIR would like to hear from participants about:

  • Any communities or areas of focus for law school clinics, including whether they represent noncitizens in removal proceedings, and whether they focus on specific case types or dockets.
  • The average number of removal cases handled per year.
  • The types of interactions with immigration courts, especially for those not
    providing representation in removal proceedings.
  • The intake processes across law school clinics.
  • Suggestions on how EOIR can better support law school clinics.
    EOIR encourages professors and leaders from law schools to attend the meeting for their clinic’s region but welcomes all such individuals to attend any session that works for their schedules. Professors and leaders of law school clinics who are unable to attend any of the sessions, including those who were unaware of the sessions in advance, may request a session by sending the name(s) of the attendee(s) and the law school clinic, the date and time requested, and a valid email address to: engagewitheoir@usdoj.gov.

pastedGraphic.png pastedGraphic_1.png

DATES:

April 14 at noon (CT) –

April 17 at 1:00pm (ET) – April 20 at 10:30am (ET) – April 21 at noon (PT) – April 27 at 1:00pm (ET) – April 28 at noon (PT) –

AR, IA, IL, IN, KY, MI, MN, MO, NE, ND, OH, SD, TN, WI

DC, DE, MD, NC, NJ, PA, SC, VA, WV CT, MA, ME, NY, PR, RI, VT
CA
FL, GA, LA, TX

AK, AZ, CO, GU, HI, ID, KS, MP, MT, NM, NV, OR, UT, WA, WY

LOCATION: Live via WebEx.

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

From my vantage point, the current EOIR system is not particularly “pro bono friendly!” So, this is a chance for those of you who are actually providing, or trying to provide pro bono assistance to weigh in with your ideas on how the system could be better!  

🇺🇸 Due Process Forever!

PWS

04-12-23

🤮👎🏼 AMERICA’S WORST FEDERAL JUDGE ALL TOO FAMILIAR TO IMMIGRATION/HUMAN RIGHTS EXPERTS — Even Before Targeting Women’s Reproductive Rights, U.S. District Judge Matthew Kacsmaryk Was An Anathema To Human Rights & Racial Justice!

Trump Judges
Trump Federal Judges Tilt Against Democracy
Republished under license

 

Ruth Marcus
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

https://www.washingtonpost.com/opinions/2023/04/08/abortion-pill-worst-judge-kacsmaryk/

From WashPost:

Opinion by Ruth Marcus

April 8, 2023 at 5:11 p.m. ET

Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.

Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.

Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.

And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.

Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.

My fury here is not because I fear that Kacsmaryk’s ruling will stand. I don’t think it will, not even with this Supreme Court. Indeed, another federal district judge — just hours after Kacsmaryk’s Good Friday ruling — issued a competing order, instructing the FDA to maintain the existing rules making mifepristone available. Even Kacsmaryk put his ruling on hold for a week; the Justice Department has already filed a notice of appeal; and the dispute is hurtling its way to the Supreme Court. (Nice work getting yourselves out of the business of deciding abortion cases, your honors.)

No, my beef is with ideologues in robes. That Kacsmaryk fits the description is no surprise. Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.

. . . .

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

“Ideologues in robes!” That’s also a good description of many of the judges appointed by Sessions and Barr to the U.S. Immigration Courts. While there have been a few improvements in the appointment process, the Biden Administration has not effectively addressed the serious institutional dysfunction and anti-immigrant bias at EOIR. 

And, let’s remember, EOIR is a “court system” affecting millions of lives and futures that is 100% controlled by the Administration. If this Administration is unwilling or unable to embrace and advance progressive values in a court system they own, how are they going to address other issues of justice, gender, and racial,equity in America?

Indeed, this tone-deaf Administration is now at war with more than 33,000 progressive groups and experts about their scofflaw “death to asylum seekers” regulations. The Administration’s immoral, impractical, and illegal proposal to send up to 30,000 legal asylum seekers to Mexico without due process or fair consideration of their claims for legal protection basically replicates, and in some ways goes even beyond, Kacsmaryk‘s endorsement of the discredited and proven to be deadly “Remain in Mexico” program instituted by Trump and Miller. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=26734&action=edit.

🇺🇸 Due Process Forever!

PWS

🏴‍☠️ SUPREMELY CORRUPT! 🤮 — Clarence & Ginni Thomas Wined & Dined “Off The Books” By GOP Fat Cat! 🤑 “Let’s just say that none of the trips Thomas took with Crow on his yacht and to his private resort in the Adirondacks resembled a Walmart parking lot.“ 👎🏼

Clarence Thomas Gifts

Clarence Thomas Gifts
Cartoonist: Dave Whamond
Republished under license

https://open.substack.com/pub/steady/p/a-great-piece-of-journalism?r=330z7&utm_medium=ios&utm_campaign=post

Dan Rather and Elliot Kirschner write on Substack:

A hallmark of great journalism is that it shines a bright light on information that is in the public’s interest but that powerful forces and actors desperately want to remain hidden.

A perfect example of this came today with a blockbuster investigative report from ProPublica about serious ethical questions concerning Supreme Court Justice Clarence Thomas. 

In a thorough examination of Thomas’s two-decade relationship with billionaire and Republican megadonor Harlan Crow, reporters Joshua Kaplan, Justin Elliott, and Alex Mierjeski detail a series of trips gifted to Thomas and his wife, Ginni, that on the open market would likely have totaled hundreds of thousands of dollars.

None of these were disclosed by Thomas, who likes to portray himself as a man of simple tastes. The report notes that in a recent documentary about his life, Thomas stated, “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it.” Let’s just say that none of the trips Thomas took with Crow on his yacht and to his private resort in the Adirondacks resembled a Walmart parking lot.

It is fitting that this news would drop a day after we wrote about the election for the Wisconsin Supreme Court. The reporting on Thomas shows the utter hypocrisy of those on the political right claiming that progressive judges are the ones undermining faith in our judicial system.

Supreme Court Chief Justice John Roberts likes to intone on how much he cares for the integrity of the court. But under his watch, the court’s standing with the public has dropped precipitously. And he need look no further than his ideological counterparts in the court’s right-wing majority.

The damage to the court’s reputation has been manifest in a series of rulings that have made a mockery of the ideas of judicial restraint and precedent. These have overturned Roe v. Wade, emboldened unrestricted gun rights, and undermined our representative government through gerrymandered elections. And that’s just the beginning.

Then there is the personal conduct of the justices, of which Thomas, a hero to the right, is a particularly egregious example. Here he is hobnobbing with rich, powerful interests and not letting anyone know. There he was refusing to recuse himself from a case involving the January 6 insurrection even though his own wife was implicated. It is clear he feels he has no need to defend his actions to anyone. He is completely unaccountable and flaunts it.

Senate Democrats today called for an ethics code for the Supreme Court. But color us skeptical that anything will change anytime soon.

This is a time of great tension in the function (or perhaps more aptly, the dysfunction) of our democracy. It feels as if we have been walking a high wire for years. But the tension still increases. In just the last few days, we have seen a state legislator in North Carolina who had run as a solid Democrat switch parties, giving Republicans a supermajority. In Tennessee, Republicans in the state’s House expelled two Democratic representatives who had joined students in protesting inaction on gun violence. And this on top of what we saw in Wisconsin.

There is also the backdrop of the former president facing numerous strands of legal peril.

There has always been an element of hardball in politics. There have always been public officials who skirted or crossed the lines of ethics and the law. There have always been judges who had dubious connections. Democracy is always precarious.

But there is a sense that now the danger is building. Voters are angry. The will of the majority is being undermined on issues like abortion and gun safety. Power is being accrued for its own sake and not to address the needs of the people.

These are times when we need a fearless press to explain where there is peril and where there is promise around the ability of our nation to regain its footing and thrive. Kudos to ProPublica for its contribution to the health of American democracy.  

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

For the last several weeks, the so-called “mainstream media” has been providing “wall to wall” coverage of a “non-event” that eventually “morphed” into yet another tawdry episode in the tawdry life of America’s most visible anti-democracy fascist! They worked hard to give “equal (or greater) time” to a unified disingenuous effort by this guy’s supporters to portray him as “the victim!” In perhaps a new “modern journalistic low” they willingly provided a platform for dangerous wacko conspiracy theorist “MTG” to spew forth her vile “sicko-fascist” rantings — with little pushback and no fact checking!

Fortunately, as pointed out by Rather and Kirschner, somebody, in this case Pro Publica, was out there doing serious investigative journalism while their “mainstream” colleagues indulged their fantasies!

For more on the GOP’s concerted, nationwide assault on democracy and fundamental values, read historian Heather Cox Richardson, here:

https://open.substack.com/pub/heathercoxrichardson/p/april-6-2023?r=330z7&utm_medium=ios&utm_campaign=post

 

🇺🇸 Due Process Forever!

PWS

04-07-23

🇺🇸⚖️🗽👍🏼 TWO RECENT UNHERALDED CASES SHOW HOW DUE PROCESS & FUNDAMENTAL FAIRNESS CAN BE “INSTITUTIONALIZED” @ EOIR — Kudos To Filipe Alexandre ESQ & Professor Elizabeth Jordan

 

NDPA stalwart Felipe Alexandre reports on LinkedIn:

Felipe Alexandre
Felipe Alexandre ESQ
Immigration Attorney
Rowland Heights, CA
PHOTO: Linkedin

Felipe Alexandre (艾飛力)

View Felipe Alexandre (艾飛力)’s profile

• 1st

U.S. Immigration Attorney-美国移民和人权律师

2d • 

On Friday we had a challenging issue with our Asylum case in immigration court.

The case was heavily documented and our NYC team did such an amazing job with the package that DHS was already willing to stipulate to a Withholding of Removal (which actually requires proving a higher probability of persecution than asylum, but is a much more restrictive form of relief). Client is a bona fide Falun Gong practitioner and has publicly opposed the Chinese government’s vicious and ruthless persecution of FLG followers in China, so it was a victory on its merits just from looking at the filing and before taking testimony.

However, the reason the government would not stipulate to Asylum is because there was a one year issue in the case. Normally, clients are required to apply for asylum within one year of their last entry into the United States, unless they can prove they qualify for one of the exceptions in the statute.

This was an unfortunate case where USCIS lost the filing and by the time client found out about this, she was so mentally distraught with the persecution of her family back home that she simply could not muster the necessary focus to work on the application. Her symptoms persisted for two years until after her family was released and she finally was able to file.

We showed several receipts, USPS labels, brought a witness who was aware of the challenges client was facing at the time, and took detailed testimony where client explained the mental anguish she was suffering at the time and how this affected her ability to focus.

Asylum granted Baby!

I love this TEAM!

 #immigration #team #asylum #falungong #chinahumanrights

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

Dan Kowalski reports for LexisNexis Immigration Community:

Elizabeth Jordan ESQUIRE
Elizabeth Jordan Esquire
Director, Immigration Detention Accountability Project (IDAP)

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/denver-ij-grants-cat-withholding-relief-el-salvador-psg

Denver IJ Grants CAT, Withholding Relief (El Salvador, PSG)

Prof. Elizabeth Jordan writes: “DU clinic students Anni Winan and Sharon Malhotra got a win in Judge Caley’s courtroom a few weeks ago on behalf of a Salvadoran who fears return to El Salvador under the State of Emergency declared by President Bukele. Notably, Caley found “Salvadoran men with tattoos erroneously perceived to be gang members” cognizable as a PSG, departing from Matter of EAG, and found that the conditions in Salvadoran prisons under the SOE amount to torture. [ICE did NOT appeal.] We would highly recommend Dr. McNamara as an expert as well.”

[Hats way off to Prof. Jordan (Director, Immigration Law & Policy Clinic, University of Denver Sturm College of Law) and her students!]

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

Congrats to everyone involved! Fairness, scholarship, timeliness, respect, and teamwork succeeds!

Common threads:

  • Great representation of the respondent;
  • Great preparation;
  • A well-prepared, thoughtful ICE Assistant Chief Counsel committed to working for a fair, correct, result;
  • An Immigration Judge who inspired the parties to excellence, paid attention to the law and the issues, listened carefully, and allowed both counsel to do their jobs;
  • An Immigration Judge who encouraged the parties to work cooperatively, narrow the issues, and focus on the key dispositive issue;
  • Great teamwork and professionalism produced a great result, with efficiency, and without gimmicks or corner cutting.

What’s needed:

  • Precedents establishing, enforcing, and reinforcing due process and best practices;
  • Working with the private bar and NGOs to establish universal representation;
  • Prioritizing represented grantable cases on the docket;
  • Dynamic judicial leadership focused on institutionalizing due process, fundamental fairness, and correct, high-quality decisions;
  • Highest quality judicial training and continuing judicial education. (It exists out here in the “real world” with inspiring, effective, creative, problem-solving  “practical scholar/teachers.” But, according to EOIR sources, currently available only through the NAIJ!)

Due process, fundamental fairness, best practices, and maximum efficiency, consistent with due process, can be achieved at EOIR! It just takes expertise, will, a plan, and the right personnel to make it happen! Leadership makes a difference!

🇺🇸 Due Process Forever!

PWS

04-06-23

🇺🇸⚖️🗽 THE POLITICS OF SOCIAL JUSTICE: PROGRESSIVES WIN KEY RACES IN WISCONSIN & CHICAGO!😎 — Instead Of “Running Away” From The Humanitarian Values That Got Them Elected, Biden, Harris, & So-Called “Centrist Dems” Should Be Embracing The Practical, Universal Values Of Due Process, Fundamental Fairness, Equal Justice Under Law & The Human Dignity Of All!

Equal Justice
Equal Justice
FROM: United Nations, Creative Commons LIcense

From HuffPost:

Liberals Take Control Of Wisconsin Supreme Court

https://www.huffpost.com/entry/janet-protasiewicz-wins-wisconsin-supreme-court-race_n_642c7201e4b0ba5d603c81ed

Brandon Johnson, Progressive Union Organizer, Elected Mayor Of Chicago

https://www.huffpost.com/entry/brandon-johnson-elected-chicago-mayor_n_642caf1be4b0ba5d603cc31a

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It’s also remarkable, if not surprising, that 33,000 of us, many representing larger groups, filed written comments OPPOSING Biden’s tone-deaf, anti-due-process, anti-rule-of-law, racially-targeted, designed-to-fail, Stephen-Miller-inspired “death to asylum (and asylum seekers)” proposed regulations!  https://default.salsalabs.org/Ta42828aa-7c89-4fca-a530-ab64d55d9cdf/e9c83407-de3b-4bcf-a318-704cbcd599a2. As someone who spent considerable time analyzing public comments on regulations during my career, that’s an astounding show of unified opposition.

Of course, that doesn’t mean that Biden, Harris, Garland, Mayorkas, or anyone else in the Administration will listen. But, they should! 

Unfortunately, the ridiculously short 30-day comment period and that this major reversal of the positions and values that Biden and Harris campaigned upon, without meaningful input and discussion with experts who actually understand the borders and have been present there, indicates that the the comments are likely to be largely ignored. That’s going to lead to big time litigation — from both progressives and GOP nativist/restrictionists. 

But, discouragingly, the Biden Administration has shown itself to be willing to tie up time and resources insanely (and not necessarily successfully) doing battle with its own would-be supporters rather than fighting the right! Just who they think is going to be the “winner” here — other than, perhaps, Donald Trump and Jim Crow  — is beyond me!

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism. Biden’s ill-advised and tone-deaf nativist asylum policies appear designed to appease this guy rather than to please those who actually voted for him and other Democratic candidates!

Instead of “running away” in the face of the GOP’s scurrilous “Anti-Woke Campaign:” targeting immigrants, the LGBTQ+ community, African Americans, Latinos, Asian Americans, Jews, Muslims, women’s reproductive rights, teachers, free speech, libraries, public education, medical science, the environment, social justice, the Federal Government, voting rights, unions, the working poor, and just about all “mainstream American” individual freedoms, the Biden Administration and Dems in general should stand up for what’s actually great about America and against the GOP’s vile, ignorant, hateful “culture warriors” and “Jim Crow racists and misogynists. Defending the legal rights and humanity of asylum seekers and other migrants would be a good place to start a real defense of American values and democracy! That is, if someone in power were really interested in those things!

🇺🇸 Due Process Forever!

PWS

04-05-23

⚖️ SPLIT 6TH FINDS THAT EOIR ABUSED DISCRETION IN DETERMINING AMOUNT OF LOSS!

Dan Kowalski reports for LexisNexis Immigration Community—

CA6 on Abuse of Discretion, Burden of Proof, and Loss to the Victim: Al-Adily v. Garland

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-abuse-of-discretion-burden-of-proof-and-loss-to-the-victim-al-adily-v-garland#

“Habib Al-Adily, a citizen of Iraq and a lawful permanent resident of the United States, was late in returning his rental car to Thrifty-Rent-a-Car (Thrifty). He was indicted under a Michigan statute criminalizing the willful failure to timely return rental property, an offense to which he pleaded guilty and for which he was ordered to pay over $10,000 in restitution to Thrifty. Two Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) concluded that these circumstances warranted Al-Adily’s deportation for having been convicted of an aggravated felony under the Immigration and Nationality Act (INA). For the reasons set forth below, we GRANT Al-Adily’s petition for review, REVERSE the BIA’s decision, and REMAND to the BIA with instructions to terminate the removal proceedings against him. … A cursory review of Exhibit A reveals that Thrifty’s actual loss was clearly less than $10,000. And DHS certainly did not meet its burden of proving by “clear and convincing” evidence, see id. (quoting 8 U.S.C. § 1229a(c)(3)(A)), that the loss exceeded that amount. … Despite admonitions by both the BIA and the Supreme Court that restitution orders must be considered with caution, especially where the restitution amount was initially determined under a lower evidentiary standard, the IJs and the BIA deferred uncritically to the state court’s determination in conflating the restitution amount with Thrifty’s actual loss. In denying Al-Adily’s motion to reconsider notwithstanding this error, the BIA abused its discretion.”

[Hats off to Frank G. Becker!]

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Although admittedly Circuit Judge Siler agreed with the BIA, I concur with Judge Gilman that this is more sloppy work on “the basics” coming out of EOIR.

EOIR has a severe, chronic “quality control/expertise/due process” problem that got much worse during the Trump years, when far too many Immigration Judges with questionable qualifications were elevated to the bench. Garland hasn’t solved this festering problem in the more than two years he has been in office. 

And, it’s highly unlikely that just adding Immigration Judges — without a huge upgrade in qualifications, training, and supervision from a revamped, truly expert BIA — is going to solve these problems. 

If anything, aimlessly adding more bodies to a mal-functioning system is just going to increase the chaos and the already unacceptable level of inconsistent results in life-or-death matters.

🇺🇸 Due Process Forever!

PWS

04-04-23

⚖️🗽🛡⚔️ ROUND TABLE MEMBERS JUDGE JOAN CHURCHILL & JUDGE STEVEN MORLEY EXTOLL NEED FOR INDEPENDENT ARTICLE I IMMIGRATION COURT AT ABA EVENT! — 150 Legal Organizations Stress Urgency, As EOIR Continues Downward Spiral & Backlog Mushrooms 🍄 Out Of Control!

Judge Joan Churchill
Honorable Joan Churchill
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges
Judge Steven Morley
Judge (Ret.) Steven Morley
Of Counsel,Landau, Hess, Simon, Choi & Doebley
Philadelphia, PA
Member, Round Table of Former Immigration Judges
PHOTO: Linkedin

 https://www.americanbar.org/news/abanews/aba-news-archives/2023/03/immigration-courts-independent/

ABA News

March 27, 2023 JUDICIAL INDEPENDENCE

Ex-judges: Immigration courts should be independent

Two retired immigration judges urged Congress to create an independent immigration court system, removing the courts from under the U.S. Justice Department, where they currently reside.

Panelists on a recent ABA webinar argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general.

The former judges made their call at a panel discussion March 17 — “Adjudicatory Independence: Are Immigration Judges a Warning or a Model?” — organized by the American Bar Association Judicial Division. They and other panelists argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general, who can overturn their decisions, fire them and create new immigration policies that they must follow.

Steven Morley, a retired immigration judge in Philadelphia, talked about a case he handled in 2018, called the Matter of Castro-Tum, which he considered a red flag for judicial independence.

The case involved an unaccompanied minor who illegally entered the United States, was detained by authorities, then released to relatives in the United States pending a hearing to force him to leave the county. Hearing notices were sent to the relatives’ address, but the boy did not appear. Finally, after four postponements, Morley administratively closed — or indefinitely suspended — the case, ruling that the Department of Homeland Security could not show it had a reliable address to notify the boy of his hearing.

At that point, U.S. Attorney General Jeff Sessions referred the case to himself and overturned the judge’s decision. Sessions ruled that immigration judges do not have the authority to administratively close cases as Morley did. The new policy made it harder for immigration judges across the country to indefinitely suspend cases. This caused an uproar among immigration judges and advocates.

Three years later, in 2021, Merrick Garland — a new attorney general in a new administration — overturned Sessions’ action.

Such actions undermine the independence of immigration judges, Morley said. “The flaws in the system allow this to happen, and we should always be concerned for the integrity of the court system.”

Morley said attorneys general under President Donald Trump referred immigration cases to themselves to overturn judges’ decisions 17 times in four years, a large number compared to previous administrations. “This is no way to run immigration policy, to have ping-ponging back and forth of policy, from one attorney general to another attorney general.”

Joan Churchill, a retired immigration judge in Northern Virginia, outside Washington, D.C., also emphasized the importance of maintaining due process in immigration courts, particularly hearing notices to defendants. “Adequate notice of the hearing is on everybody’s list as a requirement of due process,” she said.

Churchill noted that the U.S. Supreme Court, in a decision a few years ago, written by Justice Neil Gorsuch, found that notices in immigration court often were not constitutionally adequate. “Justice Gorsuch said any notices that did not include the time and place of the hearing — which many of them did not; they just said time and place to be determined — those were not adequate notice of the hearing and therefore the cases were defective.”

In 2010, the ABA House of Delegates adopted a policy supporting the creation of an independent Article I system of immigration courts. More than 150 organizations support this position, including the National Association of Immigration Judges and the American Immigration Lawyers Association, Churchill said.

The program was co-sponsored by the ABA Commission on Immigration, ABA International Law Section, National Association of Women Judges, ABA Section of Administrative Law and Regulatory Practice and ABA Civil Rights and Social Justice Section.

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

Thanks, Joan and Steve for forwarding this report and for doing such an outstanding job of highlighting the compelling, urgent need for this long-overdue reform. 

🇺🇸 Due Process Forever!

PWS

03-29-23