"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
As the human rights situations in Afghanistan, Haiti, and the Northern Triangle continue to unravel, the lack of a coherent, operational, legally sound, properly generous refugee and asylum program will continue to haunt the Administration;
In particular, the disgraceful failure to establish a strong, consistent, humane, and protection-oriented interpretation of gender-based asylum to protect women, who are disproportionately targeted for persecution, torture, and other violence, will cost lives of the most vulnerable and be a lasting stain on our nation. (I just listened to Peter Baker, NBC WH Correspondent, on Meet the Press, characterize Afghanistan under the Taliban as a “nation of spouse beaters!”)
The need to fix our our refugee and asylum systems immediately was obvious on January 20, 2021. Why, after 7 months it still is nowhere close to being accomplished is less obvious!
The turmoil in Afghanistan and Haiti and the ongoing human rights disasters in Latin America, all reasonably predictable, are going to increase the human and political problems flowing from a failure to take human rights seriously and to bring the practical human rights experts necessary to solve these issues constructively into the Government power structure! In the end, human rights are everyone’s rights! We ignore that at our peril!
Ironically, while protecting women from persecution and improving their lives was used as a justification by Administrations of both parties for our continuing military presence in Afghanistan, now, as the “end game” plays out in real time, it appears to have been largely reduced to a “talking point” (or a “news feature”) without any discernible plan for protecting or saving Afghan female refugees. Sadly politicos and officials from both parties seem more interested in using women’s lives as “cover” for two decades of ultimately futile presence there than with actually saving any lives now. Indeed, if we treat Afghan women refugees with the inhumane indifference we have continued to heap on female refugees seeking legal asylum at our Southern Border, their outlook is beyond grim.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Some Life-tenured Federal Judges abuse their privileged positions to insure that this is what “due process” will look like for asylum seekers of color! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the decision from U.S. District JudgeMATTHEW J. KACSMARYK in Texas v. Biden:
Judge Kacsmaryk was appointed to the bench by Trump & McConnell in 2019. He is a former Federal prosecutor, deputy general counsel of a right wing religious group, and member of the Federalist Society. His nomination was (obviously unsuccessfully) opposed by more than 200 prominent civil rights, religious tolerance, and human rights groups.
Here’s an excerpt from their letter in opposition addressed to the Senate:
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Matthew Kacsmaryk to be a U.S. District Judge for the Northern District of Texas.
Nominees to the federal courts must be committed to respecting the law, Constitution, and core American values of justice, fairness, and inclusivity. Mr. Kacsmaryk does not meet this standard. He is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people. His record reveals a hostility to LGBT equality and to women’s health, and he would not be able to rule fairly and impartially in cases involving those issues.
Interestingly, the letter was signed by none other than Vanita S. Gupta, then President & CEO of the Leadership Conference on Civil and Human Rights and currently the Associate Attorney General of the U.S.
Gupta and her colleagues had Judge K “pegged” as an unqualified righty bigot then! But, with the lineup currently in place at the 5th and the Supremes, it remains to be seen whether there is any effective short-term remedy for his grotesque abuses of power and human rights.
Judicial appointments are important! Maybe it’s time for Gupta and others at DOJ to treat Immigration Judge and BIA appointments as such!
🇺🇸Due Process Forever! Better Federal Judges for a better America!
“In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. … We grant the petition for review, vacate the BIA’s May 2020 order, and remand for proceedings consistent with this opinion.”
[Hats off to David L. Wilson and amici Immigrant Law Center of Minnesota, ASISTA Immigration Assistance Project and National Network To End Domestic Violence!]
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Folks, all of this nonsense, delay, needless litigation, and remarkable legal/judicial incompetence was for the “purpose” of denying a well-deserved continuance to a U visa applicant — what should have been about a 5-minute positive adjudication, at max. No wonder the Federal Courts are clogged, the EOIR backlog grows, and the system has lost all respect and credibility!
I wish that Lucas Guttentag, Lisa Monaco, Vanita Gupta, and Merrick Garland would explain to all of us what is the purpose of an “expert tribunal” that lacks expertise, fundamental legal skills, judicial independence, moral courage, and common sense, as well as the backbone to have stood up to folks like Sessions and Barr (see, e.g., the Census Bureau career civil servants for stark contrast).
EOIR needs, among other things, changes at the top, real courageous progressive leadership, and a new, well-qualified, progressive, practical, expert BIA that puts due process and fair adjudication above all else. The practical experts are out there! Lucas knows exactly who should be leaders, role models, and appellate judges at the BIA! He knows that EOIR is the one critically important Federal Judiciary that can be transformed in the short run into a progressive, due-process-focused, “model judiciary!” Every day wasted in making the necessary changes in personnel and procedures is a life-changing, life-preserving opportunity wasted!
So, what’s the delay? Why is this nonsense, injustice, and waste of resources continuing nearly seven months into the Biden Administration? What’s with the continuing, due-process-denying, corner-cutting, sophomoric “denial quotas” for EOIR “judges” that produce wasteful, unjust “garbage adjudications” like this litigation exemplifies?
Lucas Guttentag Senior Counselor to the Deputy Attorney General
It shouldn’t be this hard to get long, long overdue, well-documented, common sense, readily achievable changes at EOIR! It shouldn’t be this hard for asylum seekers and other migrants, as well as their long-suffering representatives, to get the due process and fair and impartial adjudication that is their absolute right under the Due Process Clause of the Fifth Amendment to our Constitution!
For the reasons provided above, in absentia orders involving proceedings commenced through a defective NTA are rendered invalid by Niz-Chavez. This is true whether the Board ultimately determines that the decision impacts the Immigration Courts’ jurisdiction, or is in the alternative a claim-processing rule.
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Thanks so much, “Sir Jeffrey,” my friend and colleague!
Unfortunately, the recent practice of the BIA has been to construe Supreme Court decisions favoring respondents narrowly against them in Immigration Court. Thus, the BIA has needlessly protracted litigation, produced conflicting results, and lessened justice, all while dramatically increasing backlogs. We’ll see whether that practice, apparently designed to appease and please DHS Enforcement and litigators at the DOJ, holds true here.
Additionally, the status quo does not guarantee that no one will be present in the United States without permission. In fact, with the plenary power doctrine in place, there are approximately 10 million individuals living in the United States without permission. (And most of them crossed the border legally, entering the territory with legal authorization for some period that expired.) Despite this, the United States continues to exist. Noncitizens, however, are denied more independent adjudicators under the false idea that by denying them we somehow protect the nation’s sovereignty. These are complex lives interwoven with our communities, businesses, schools, and the lives of US citizens. The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.
Perhaps the sovereignty fear is shorthand for something else? Is it an objection to multiculturalism? The reflection of a desire to give the president power to thwart statutory immigration law? Or perhaps courts and policymakers have been invoking the phrase “plenary power” for so long that it has become an out of date, knee-jerk reaction.
Sovereignty and foreign policy will remain intact even with more independent immigration adjudication. The sovereignty fear is a distraction from what really needs our attention; we should not let it stop us from providing fair process.
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The threat to our democracy hardly comes from those seeking legal refuge to save their lives or to find meaningful work to support their families and contribute to society.A more robust and fair legal immigration system would assist in identifying the relatively small percentage of migrants who seek to do us harm.
No, the bigger threat comes from GOP neo-fascist insurrectionists and their spineless political enablers who actively seek to undermine our democracy with lies and White Nationalist racism.
In a more functional system, Professor Family and those like her who understand and are committed to the “big picture” of American democracy and equal justice for all would be the Appellate Immigration Judges and Article III Judges — jurists ready and willing to stand up to Executive abuses of authority! The Immigration Courts should be the “starting place” for restoring and reinforcing American democracy. Does the Biden Administration have the vision and guts to make it happen?
USCIS: Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from Aug. 3, 2021, through Feb. 3, 2023. Haiti TPS applicants are eligible to file Form I-821 online.
TRAC: The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million.
ImmProf: A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.
AIC: All told, available data shows that ICE arrested 674 potential U.S. citizens, detained 121, and deported 70 during the time frame the government watchdog analyzed.
NYT: Mr. Biden said on Thursday night that White House staff were “putting out a message right now” that “we should include in the reconciliation bill the immigration proposal.”
Hill: Although the document is deeply critical of the Trump administration, it leads with border management, relegating the Biden administration’s “root causes” initiative to the last section.
Vox: [D]iversity visa lottery winners who applied for visas amid the Covid-19 pandemic now risk losing their opportunity to come to the US — in part because the State Department has continued the Trump-era policy of deprioritizing their applications.
Buzzfeed: Thirty-two unaccompanied immigrant children who were deported to Guatemala despite a judge’s order have yet to be brought back to the US to apply for asylum, six months after the government admitted it was in the wrong. Now, immigration advocates are ramping up pressure on the Biden administration to speed up the process.
Reuters: Garland’s letter comes just a day after Abbott signed the order, which states that “no person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants” who have been detained by federal immigration officials for crossing the border.
AP: Unless there’s a legal challenge or other exception, ICE’s options are to either transfer current detainees in Illinois to other states or release them.
WaPo: “The IRS is aware some taxpayers who filed tax returns with ITIN numbers did not receive their child tax credit payment for July. We have worked expeditiously to correct this issue and these taxpayers will start receiving payments in August. All impacted taxpayers will receive their July payment.”
Advance copy of USCIS notice announcing the designation of Haiti for Temporary Protected Status for 18 months, effective 8/3/21 through 2/3/23. The notice will be published in the Federal Register on 8/3/21. AILA Doc. No. 21073002
Lexis: Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) (1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). (2) The Supreme Court’s holding that a statutory rape offense does not…
Law360: The Eighth Circuit refused on Thursday to review a Honduran man’s bid for deportation relief reserved for victims of child abuse, saying the government had discretion to decide he didn’t deserve exemption because of his criminal history.
Law360: A split Ninth Circuit panel denied a Mexican woman’s petition for review of her deportation, which was previously blocked due to the ambiguous nature of her drug conviction, citing a recent U.S. Supreme Court ruling that an unclear conviction alone cannot save an applicant’s case.
Lexis: Maie v. Garland “Maie’s petition contends that his petty theft convictions are not categorically CIMTs. The government’s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie’s argument was not waived. Because Maie’s argument presents an issue we have yet to address in a published opinion, we ordered supplemental…
Lexis: Romero v. Garland “Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance of the evidence” burden from 8 C.F.R. § 1240.8(d) applies. … [W]e remand for the BIA to reconsider whether Romero met his burden to show by…
Law360: An LGBTQ American expat is closing down her lawsuit seeking to obtain citizenship for her daughter born overseas, following a policy change from the Biden administration that allowed the child to secure a passport even though she’s not biologically related to a U.S. citizen.
AILA: The United States filed a lawsuit in federal district court against Texas and its governor, Greg Abbott, alleging that the governor’s 7/28/21 executive order relating to the transportation of certain migrants during the COVID-19 pandemic is unlawful. (United States v. Texas, et al., 7/30/21) AILA Doc. No. 21080239
Politico: The American Civil Liberties Union on Monday announced it will resume a lawsuit against the Biden administration to force an end to the use of a provision of U.S. health code known as Title 42 to expel migrant families arriving at the border.
AILA: DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras. AILA Doc. No. 21080231
AILA: DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation granting U.S. Refugee Admissions Program access. Notice outlines eligibility. AILA Doc. No. 21080240
AILA: USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.AILA Doc. No. 21080238
AILA: DHS published its semiannual regulatory agenda providing a summary of projected regulations, existing regulations, and completed actions of DHS and its components. (86 FR 41226, 7/30/21) AILA Doc. No. 21080237
Immigration Court backlogs continue to mushroom as Garland to date has failed to take the aggressive measures needed and recommended to slash the docket by getting so-called “non-priority” cases off the docket (see, e.g., “Chen/Moskowitz proposal”) and bringing in more “progressive practical scholar judges” who know how to complete cases without compromising due process;
Biden’s announced support for “immigration legislation by reconciliation” might be the best shot for an Article I Immigration Court — is it an “idea whose time has finally come” as Judge Dana Leigh Marks, long-time Article I advocate, said recently;
Biden Administration mindlessly chooses to go to war with ACLU and human rights advocates on continued abuse of Title 42 to suspend asylum at the border (why not instead enlist these experts to restore a functioning asylum system at the border?);
ICE evidently has been deporting U.S. citizens, and not just “one or two;”
Circuits continue to “ding” BIA on basics like standard of proof, categorical approach;
Lucas Guttentag arrives on the scene @ DOJ not a moment too soon— but he’ll need lots of expert help on the inside to “right this sinking ship;”
Haste makes waste once again, as Gov. drags feet on returning 32 illegally removed children, spurring yet more unnecessary litigation (what about getting it right the first time around? — saves time and resources, also lives!);
https://lawprofessors.typepad.com/immigration/2021/07/lets-call-the-border-crisis-what-it-is-another-big-lie-from-the-right.html is also a “good read.” It seems pretty obvious, as many of us have been saying over and over, that having no legal system for screening and admitting refugees would add to the number of apprehensions and illegal entries — what other choice do desperate refugees have under the dysfunctional system maliciously created by Trump and mindlessly and illegally being maintained by Biden? Blaming the “victims” for our Government’s own intellectually dishonest, scofflaw, and immoral actions is a particularly cowardly thing to do! After nearly seven months in office (and over two months to prepare after the election) there is no excuse for the Biden Administration’s failure to have in place a fair and efficient asylum system, staffed by experts and better IJs who understand asylum and protection laws and are willing and well-qualified to grant relief to the deserving! Properly screening and establishing an orderly, fair adjudication system, with the assistance of NGOs and legal aid groups across the nation, would take pressure off of border communities. It would also allow qualified asylum seekers to become legal residents and begin fully contributing to our society and economy. Almost all experts, economists, and demographers say we need more legal immigration. Here it is staring us in the face; but, our Government wastes time and resources futilely trying to deter and expel folks who can help us out (while saving their own lives — a “win-win”)!
Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]
No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.
. . . .
Is there a life preserver on this sinking ship? Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]
Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.
Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.
Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.
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Read the complete article at the link.
I just hope that Stacy and Cyrus have sent copies of this article to Lucas, Lisa Monaco, Merrick Garland, Vanita Gupta, Kristen Clarke, and the Chairs of the House and Senate Immigration Subcommittees!
Anti-immigrant, anti-asylum, misogynist culture (actively promoted by Sessions and Barr), biased and clearly defective judicial selection procedures, and the resulting lack of practical scholarship and human rights expertise are festering problems at EOIR. They must be solved now!
The virtual exclusion of progressive practical scholars and advocates — essentially, the best and brightest — from the “21st Century Immigration Judiciary” has been both systematic and intentional. Disturbingly, the Obama Administration produced results only marginally different from Bush II and Trump!
That’s why many of us were so shocked and outraged when Judge Garland continued to “honor” fatally flawed, biased, and exclusionary hiring practices by his predecessors.
Culture also plays a role in creating a biased judiciary. Why would a talented progressive expert, particularly a women of color, want to serve in a “bogus” judiciary that basically furthers racist narratives and myths, demeans women and minimizes their persecution (probably the most significant persecuted group in the world right now), and where the AG publicly slanders courageous private advocates while treating his “personally owned judges” like enforcement stooges.
The BIA has been “inflated” back to its “Schmidt-era” 23 Appellate Judges, after Ashcroft’s transparent “purge” cut the number to an unworkable 12 to remove the liberal judges (who were in the minority anyway). Yet, for Pete’s sake, there hasn’t been an outside appointment to the BIA since the Clinton Administration — more than two decades ago! Totally inexcusable.
And, this lack of outside expertise is a primary reason why EOIR is in deep trouble that threatens the stability of our entire justice system and democracy itself. A number of the existing BIA Members were selected NOT because of their demonstrated reputations for fairness, scholarship, respect, and timeliness, but because of their notoriety for denying almost every asylum case that came before them.
Here’s an excerpt from a letter that SPLC court observers sent to then Director Juan Osuna in 2017 describing the in-court bias of two Immigration Judges sitting in Atlanta:
In one hearing, an attorney for a detained respondent argued that his client was neither a threat to society nor a flight risk. 19 In this hearing, IJ Cassidy rejected the respondent’s request for bond, stating broadly that “an open border is a danger to the community.” He then analogized an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let that person in. The attorney disagreed with IJ Cassidy, who then responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” The attorney again disagreed with both claims. IJ Cassidy concluded the hearing by stating that the credible fear standard is not a proper test for review of asylum seekers, wholly disregarding the established legal standard for such cases.20 In a private conversation after this case, IJ Cassidy told the observer that the cases that come before him involve individuals “trying to scam the system” and that none of them want to be citizens. He also remarked that he thought the U.S. should be more like Putin’s Russia, where “if you come to America, you must speak English.”21 In another hearing, IJ Wilson told a respondent that “this case is like every case . . . came in from Mexico for medical treatment then try to claim asylum.”22 [text of footnotes omitted].
Director Osuna resigned a short time later, apparently in response to his concerns about the legitimacy of policies that the Trump immigration kakistocracy at DOJ intended to pursue. (Tragically, he died a short time later.) I am unaware that James McHenry, Osuna’s successor, hand-picked by AG Jeff “Gonzo Apocalypto” Sessions to “deconstruct due process @ EOIR” ever undertook a thorough investigation or that any sanctions were imposed upon these judges. But, stunningly, both were later appointed to the BIA by former AG Barr and continue to serve today under Garland.
These are the types of life-threatening, humanity-degrading, anti-due-process actions that became routine at EOIR over the past four years, and caused my friend and expert Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law to ask in a recent press report: “How can you have a fair game when the referee is unfair?” https://immigrationcourtside.com/2021/08/03/😎👍🏼good-news-justice-even-as-latest-report-shows-massisive-failure-👎🏽🤮-eoir-poor-judging-politicized-practices-unhel/
Obviously, you can’t have a “fair game” under these circumstances. That was the whole point of the Trump DOJ, along with some gratuitous cruelty, malicious incompetence, and outright scofflaw behavior thrown in!
As Dean Caplow points out, the solutions aren’t “rocket science.” 🚀 But, so far, the problems EOIR continue to fester and undermine American justice!
Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department
Monday, August 2, 2021
By Immigration Prof
Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”
Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.
In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”
If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.
That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.
What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.
. . . .
The epic case backlog results from a convergence of factors.
Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.
Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.
But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.
On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.
While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.
“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”
. . . .
Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.
Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.
“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”
‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings
That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.
Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.
“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”
. . . .
Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.
Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.
Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.
But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.
“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”
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You can read Tyche’s complete article at the link.
With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Nevertheless, as ProfessorKaren Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in theGuttentag-Musalo mold,” — any favorable regulatory or even legislative changes willlikely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.
Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control.
GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”
Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!
It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors ofAmerican democracy. It’s that important!
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.
FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor
The Supreme Court has held that the generic age of consent is 16. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly, absent aggravating circumstances, consensual sexual activity between an adult and a minor over 16 is not categorically “abusive.” If a statutory rape statute sweeps more broadly than the generic definition (in other words, if it sets the age of consent above 16) it cannot form the predicate offense for removability under section 237(a)(2)(E)(i) of the Act for having been convicted of a crime of child abuse. There can be no categorical “child abuse” where the criminalized conduct is not categorically abusive. Here, the respondent was convicted of violating a statute that sets the age of consent at 18. Because the Supreme Court has left us no other option, I would dismiss the DHS’s appeal and terminate the respondent’s removal proceedings.
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In the Pereira fiasco, the BIA’s unwillingness to follow the Supremes’ lead when it conflicted with their “mission” of helping out DHS enforcement (a stated objective of Jeff “Gonzo Apocalypto” Sessions) created big time practical problems that could and should have been avoided.
Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.
Keywords: access to justice, immigration courts, removal proceedings, judicial decisionmaking
Suggested Citation:
Ryo, Emily and Peacock, Ian, Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings (July 13, 2021). Law & Society Review, Available at SSRN: https://ssrn.com/abstract=3885995
Sessions and Barr appointed over half of the current approximately 550 U.S. Immigration Judges;
Many of those appointed had little or no immigration experience — almost none had actual experience representing asylum seekers or any other migrants in Immigration Court;
With 27 IJ appointments since taking office, AG Garland now has appointed approximately 5% of the Immigration Judiciary;
Only one of Garland’s first 27 appointments has impressive progressive immigration credentials and experience;
The balance of Garland’s appointees to date profile much like Sessions’s and Barr’s — not surprising, because Garland used the same flawed recruiting and selection criteria that Barr had been using;
An Immigration Judge is required to complete 700 cases annually, just too retain his or her job;
Unlike most civil cases in U.S. District Courts, lives and futures are at stake in almost all Immigration Court cases, with the family, communal, economic, and societal effect of each decision often extending far beyond the individual migrant whose life and/or future is at stake.
Members of the NDPA, let AG Garland, VP Harris, and President Biden know that we need a better and more aggressively progressive system for recruiting (virtually “null” right now — “Sir Jeffrey” Chase and I, along with other members of our Round Table, do more “recruiting” among “practical scholars and progressive experts” in the private sector than the Administration!), selecting, training, and retaining Immigration Judges for these life or death determining positions that, in a better functioning and wiser Administration, would be the door to, and training ground for, a better, more diverse, more representative, more progressive Article III Judiciary!
Lack of creative and aggressive recruiting for a better and more diverse expert Immigration Judiciary is a particular sore point! We now have our first immigrant family, African-American, AAPI, female Vice President, Kamala Harris, a talented lawyer! She has an important immigration and human rights portfolio!
So why isn’t she out there aggressively encouraging diverse, well-qualified, progressive “practical scholars and immigration advocates,” many of whom might not have seen themselves as potential Immigration Judges and BIA Members to apply for these critical jobs? Why aren’t the recruiting and selection criteria for IJs and Board Members both more transparent and involving of some outside expert input!
As VP Harris knows, the key to changing the composition of the power structure is for progressives, particularly female progressives of color, to see others like them in these positions to act as role models. It’s going to take aggressive positive actions by individuals like VP Harris, AAG Gupta, and Assistant AG Clarke to “change the face” of the Immigration Judiciary and the power structure for the better!
With the recent hiring of NDPA superstar Professor Cori Alonso Yoder, VP Harris’s alma mater, Howard University Law, now has it’s most high-profile “immigration and human rights presence” ever! Why isn’t VP Harris over there aggressively encouraging Howard Law grads to seek careers in immigration and human rights, eventually aspiring to the the Federal Judiciary, including the Immigration Judiciary? That’s how real change in the power structure happens!
This is becoming a totally inexcusable “blown opportunity” for progressives! Who knows if or when it will come again?
Asylum Seekers Wikimedia Commons — “Will US asylum seekers finally be treated fairly, humanely, and in accordance with full due process? Or is the Biden Administration’s recent “plan” just another “designed to fail enforcement gimmick” masquerading as legitimate asylum policy? Only time — and the details — will tell!
I found the White House “Fact Sheet” to be largely a mix of bureaucratic doublespeak, shame, blame, and few details about how it’s actually going to work. Also, not much about who is going to be responsible (and accountable) for making it work!
Will those whose cases are denied by an Asylum Officer still have a right to IJ/BIA/Judicial Review?
How will they set up dedicated dockets without pushing back cases already on the docket?
What steps will be taken to insure that Judges assigned to these dockets aren’t members of the “90% Denial Club?”
How will they screen asylum cases with Title 42 still in effect?
What will be the role of detention? If detention is used, how will reasonable access to counsel be be guaranteed in detention centers?
Who will be training the CBP Agents, Asylum Offices, and Immigration Judges to recognize asylum claims, even those that might not be well-articulated by migrants or that might involve novel applications of protection laws?
What advance coordination will take place with legal services groups to maximize representation.
How will positive asylum guidance be issued (given that the BIA has issued almost none in the past four years, and a number of negative precedents have been vacated by the AG or rejected by various Circuits)?
How will the success of this program be measured, particularly with respect to insuring full due process and fundamental fairness to all asylum applicants?
What type of resettlement opportunities or assistance will be made available for successful asylum, seekers and who will provide and fund it?
Will there be any role for the UNHCR? If so, what?
How will DHS and EOIR solve the “effective notice problems” that have plagued the Immigration Court system for years and resulted in far too many “bogus in absentia removal orders.”
Who will insure the accuracy of statistics and that “gamed” or manipulated statistics are not used (as the Trump regime did) to create false narratives about “success” by the Administration or to promote unfair and inaccurate “myths” about asylum seekers.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesMe
Excerpts from Jennifer’s article:
. . . .
Garland’s latest vacatur was well-received by Jeffrey S. Chase and Paul W. Schmidt, who were among 40 retired immigration judges to sign a letter last spring urging Garland to undo all 17 BIA decisions issued by his Trump-appointed predecessors.
“Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane. Why would any party stipulate to an issue if it will simply be ignored on appeal?” Judge Schmidt said in a statement to Law360, calling such agreements “a really important part of encouraging efficiency in litigation and reducing backlog.”
According to Judge Chase, Monday’s order “will again allow valuable court time to be spent focusing only on issues actually in dispute between the parties, a practice that could save hours of hearing time on a single case.”
“And limiting the scope of administrative review to the issues actually raised on appeal by the parties eliminates the need to sacrifice fairness in order to achieve that increased efficiency,” he continued.
U.S. Department of Justice Office of the Attorney General
(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
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Way to go Judge Garland!
Yes, I feel good about this! This was one of the “Sessions-Barr follow-ons” to A-B-, L-E-A-, and Castro-Tum that had undermined due process and fundamental fairness while inhibiting sound case management. It was part of a virulent, racist, anti-asylum agenda promoted by Trump and Miller and unethically carried out by Sessions and Barr. It was a backlog-building, due-process-denying national disgrace to be sure! One that unethically targeted people of color and sought to improperly eradicate our legal (and moral) obligations to protect refugees — without any legislative authority!
Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane! Why would any party stipulate to an issue if it will simply be ignored on appeal?
Stipulations are a really important part of encouraging efficiency in litigation and reducing backlog. I used them all the time at both the BIA and the Arlington Immigration Court!
Why on earth would the BIA revisit an issue that was so well-established and logical that the parties had already agreed upon it below? Why would an already overwhelmed tribunal be required to decide issues that were uncontested by the litigants?
No wonder the Immigration Court system was completely out of control and counterproductive during the Trump Administration!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration still can’t get beyond this “vision” of appropriate treatment of legal asylum seekers. This is the “human face (down)” of “deterrence-only policies.” Six months in, and the Administration still has nobody in leadership who understands human rights, refugees, asylees, and the relationship of scenes like this one to the overall failure of equal justice and dimishment of the rule of law in America. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
However, lest we start thinking that the Biden Administration finally “gets it” on asylum policy, DHS immediately countered with a totally tone-deaf announcement on “punishing” asylum seekers for the Administration’s failure to live up to it’s campaign promises ands re-establish a viable legal asylum system at the border:
DHS Statement on the Resumption of Expedited Removal for Certain Family Units
Release Date:
July 26, 2021
Beginning today, certain family units who are not able to be expelled under Title 42 will be placed in expedited removal proceedings. Expedited removal provides a lawful, more accelerated procedure to remove those family units who do not have a basis under U.S. law to be in the United States.
Attempting to cross into the United States between ports of entry, or circumventing inspection at ports of entry, is the wrong way to come to the United States. These acts are dangerous and can carry long-term immigration consequences for individuals who attempt to do so. The Biden-Harris Administration is working to build a safe, orderly, and humane immigration system, and the Department of Homeland Security continues to take several steps to improve lawful processing at ports of entry and reforms to strengthen the asylum system.
Perhaps somebody needs to tell these DHS/Biden Administration scofflaws that: 1) we have no functioning legal asylum system at ports of entry right now; and 2) refugees and asylees can’t wait for the Administration to get its act together. As one asylum seeker from the Northern Triangle stated in a recent Courtside post: “Nobody wants to die.”
Deterrence always has been and always will be a failure, both in terms of legal policy and morality. We need some progressive experts with some guts and ability “on the inside” to fix this system before more lives are lost.
Enough with the inane “wait to die” deterrence statements that actually insult the intelligence of asylum seekers and demean their dire situations! Fixing this system is not rocket science! But, it requires some progressive human rights leadership and expertise now sadly lacking in the Biden Administration’s approach!
Attorney General Merrick B. Garland — His poignant recollection of the inability of his great aunts to find refuge in the U.S., and their resulting deaths in the Holocaust, haven’t stopped him from daily “pushing the St. Louis back out to sea” and denying legal protections and full due process to asylum seekers at our Southern Border and at EOIR — his “wholly owned court system” that functions more like a branch of DHS enforcement than a court of law! Official White House Photo Public Realm
“Garland believes that a thorough de-Trumpification of the Justice Department would … be called partisanship and would call into question the institution of the Justice Department, but the institution has already been called into question,” says Jeff Hauser, executive director of the Revolving Door Project of the Center for Economic and Policy Research. “Sessions and Barr came in with a goal of assaulting and undermining the institution of the Justice Department, and it’s just weird to presume that they failed. We presume that they succeeded. They were in the building. They hired their minions. They assessed people. They politicized everything. Garland presuming that the previous Department of Justice was behaving in good faith requires the same suspension of disbelief as believing dragons are real in a fantasy novel.”
. . . .
And so, we’ll also be judging Garland by another standard: how well his approach fortifies the institution against a future administration that once again disrespects norms and politicizes the rule of law.
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These quotes go to the heart of the problem with Garland’s stewardship and his naive, ivory tower, ineffectively timid approach to restoring the rule of law at Justice. “By the book” is NOT an effective strategy against opponents who seek to burn the book, bury the ashes, and lie about it! It’s basically no “strategy” all!
I’d be shocked, as would most knowledgeable observers, if the next GOP Administration doesn’t “disrespect the norms and politicize the rule of law.” Not only have the past two GOP Administrations done exactly that, in spades, but that’s basically what today’s GOP stands for: neo-fascist, anti-democracyrule based on big lies and a cult of personality.
To the extent the modern GOP believes in anything, it’s the exercise of power without restraint of law or morality. “Why? Because we can, and you can’t stop us. We’re in power, and you aren’t,” was largely the Trump McConnell mantra, particularly when it came to judges. How did the dying plea of RBG and the appeals of Dems for fairness and consistency in Supremes’ appointments work out? It was a classic “heads I win, tails you lose” that once again left the Dems grasping at thin air.
So, these folks are going to respect long-gone “norms” from the 1970s? “Norms” that couldn’t and didn’t stop Ashcroft, Gonzalez (“Gonzo I”), Mukasey, Sessions, or Barr? You have to be kidding? I don’t know what universe Garland has been living in for the past four plus years, but it doesn’t appear to be this one.
Contrary to Garland’s approach, there is absolutely nothing wrong with:
Coming clean on recent abuses at DOJ;
Replacing lawless immoral intentional misconstructions of law with better progressive ones that adhere to and further both the rule of law and “good government;” and
Replacing political hacks who furthered the White Nationalist agenda or other personnel who “went along to get along” with abuses, to keep their jobs, with progressive experts committed to due process and best practices who’ll get the job of restoring the rule of law, respect, and human dignity done.
Not only is there nothing wrong with the foregoing, but they are moral and practical imperatives if lives are to be saved and our democracy preserved! For Pete’s sake, these are actually the things that Biden and Harris campaigned upon and won! Why is Garland reticent to act upon truth?
This isn’t an “academic exercise!” It’s an actual life or death moment for migrants and for our democracy! And, the opponents are not folks who intend to honor norms established by Garland or any other Dem.
Indeed, they will characterize all of his actions as “radical socialism,” as they already have, regardless of the truth. In many ways, Garland’s incremental, largely passive, approach to “de-Trumpifying justice @ Justice” has been a huge gift to GOP anti-democracy insurrectionists and restrictionists. But, if I were him, I wouldn’t wait for the “thank you note.”
To shrink from the bold decisive actions necessary to clean up the disgraceful mess at the DOJ and its most grotesque manifestations at EOIR shows not only a lack awareness, but a lack of beliefin the progressive, democratic, humane values that got Biden and Harris elected in the first place and got Garland his job.
And, it’s not as if the problem with the values and institutional integrity at DOJ started only in the Trump regime. Under Bush II, Ashcroft and his advisor, notorious White Nationalist xenophobe Kris Kobach, had their plan to dismantle due process and fundamental fairness in the Immigration Courts, through compromising the BIA, in action before they even set foot in the building 10th & Pa. Ave.Those changes have actually cost some migrants their lives, and some DOJ attorneys their jobs (for the “crime” of standing up for due process for migrants) even before the Trump kakistocracy arrived.
And, al la Garland, the Obama Administration’s failure to either acknowledge the historical truth or take the obvious and necessary corrective actions sent our Immigration Courts and justice for migrants into a steep decline that became a “death spiral” under Sessions (“Gonzo Apocalypto”) and Barr and continues its accelerated downward trajectory under Garland. It’s a contributing factor in the largely self-created 1.3 million case Immigration Court backlog generated by Sessions and Barr at EOIR.
Indeed, the lack of quality, intellectual honesty, practical guidance, humane values, common sense, expertise, and legitimacy at EOIR has spread to and adversely affected other areas of our beleaguered justice system and now threatens to take down everything in a messy heap. Why a former Article III Appellate Judge can’t grasp that reality and act accordingly is beyond me.
Maybe its because he didn’t personally experience enough of EOIR’s deadly, failed, corner-cutting “work product” at the D.C. Circuit because DC has no “resident Immigration Court.” Maybe it’s because he can’t “connect the dots” between his relatives who died in the Holocaust and having no legal asylum system for those arriving at our Southern border and denying asylum seekers full due process every day @ EOIR.
For the reasons set forth in the article, it seems that Judge Garland is philosophically and by personality incapable of leading and implementing long overdue, critical progressive changes at this point in his otherwise distinguished career. The only hope would be that one of his advisors could light a fire and get him out of his inept centrist institutionalist funk.
But, the two best hopes to do that, Associate Attorney Vanita Gupta and Assistant AG for Civil Rights Kristen Clarke, who should be personally familiar with the practical and racial justice disaster at EOIR and its overall adverse effects on justice in America, have failed to make a visible impact.
Garland needs a practical expert like Dean Kevin Johnson at U.C. Davis Law, Professor Karen Musalo at the Center for Gender and Refugee Studies at Hastings Law, Jaya Ramji-Nogales, Associate Dean at Temple Law, Judy Rabinowitz at ACLU, Marielena Hincappie at the National Immigration Justice Center, or someone of equal expertise and stature in civil and human rights to advise him and lead the reform effort at EOIR. Sadly, he does not appear interested in surrounding himself with such capable, talented individuals who could “save him from himself” while saving the lives of those like his great aunts who perished in the Holocaust for want of a viable refugee and asylum system.
Like Garland, I was at the DOJ during the Levi-Civiletti post-Watergate reform era. I once knew him and certainly helped out his “boss” Ben Civiletti on several occasions.
Somewhere in the “archives,” I have a handwritten note from Ben Civiletti expressing his gratitude that he never had to use the “administrative subpoena” and “designation as an “immigration officer” that I had drafted for him in the midst of one of a number of “immigration emergencies” involving a plane on the tarmac.
Somewhere along the line, Merrick seems to have forgotten that even Civiletti was willing to take bold actions when necessary to advance the cause of immigration justice! There was no “precedent” for the Attorney General personally serving an INS subpoena. But, Civiletti was on the verge of doing it, until “Plan A” prevailed, and the crisis was resolved without resorting to “Plan B” or even “Plan C.”
I was also there and directly affected when the likes of Ashcroft, “Gonzo I”, Kobach, and Mukasey cut through those post-Watergate reforms at EOIR as though they never existed, with little resistance except for a few of us “survivors” who adapted and continued to fight for due process and individual justice in a deteriorating system.
I watched in disgust and disbelief as the Obama Administration (“change?” — not so much in immigration) completely “blew” the opportunity to make life and democracy saving corrections at EOIR. I then saw from the outside as “Gonzo Apocalypto” and Barr aggressively and systematically dismantled American justice, starting with the Immigration Courts. Their job was made infinitely easier by the indolence of the Obama Administration in failing to systematically bring progressive reforms and appoint more progressive judges at EOIR.
But, those of us “on the outside” were not just “passively outraged” by the due process and human rights abuses flowing from DOJ, we took action! Among many groups forming the New Due Process Army (“NDPA”), our Round Table of Former Immigration Judges, some of whom had resigned or retired as an act of conscience, helped lead the charge against the Trump regime’s inhumane, scofflaw policies and bogus legal interpretations.
We filed over 100 amicus briefs in tribunals from the Supremes to the BIA, many of them successful in helping to correct and reverse the regime’s anti-due process, anti-immigrant, racially driven policies. We also wrote, educated, did media interviews, organized, inspired others to join the resistance, and voted for change!
Even assuming, as I do, that any future GOP Administration would move to undo progressive reforms and replace progressive judges, their job would be made much more difficult if Garland creates the progressive judiciary that he should at EOIR. Moreover, even if exiled, “trueprogressive practical scholars” will form the expert backbone of the resistance to neo-fascism in the “next generation” of the Round Table and the NDPA.
Some “graduates” of a progressive Immigration Judiciary could be elevated to the Article III Judiciary where they will have continuing beneficial influence beyond the ability of the next GOP Administration to change. Others could use their knowledge of the system to fight the forces of nativism, restrictionism, White Nationalist myths, and mindless cruelty. Others will run for office and improve our moribund legislative branch! Who knows, we could even get Article I during the Biden Administration, giving a progressive immigration judiciary yet another degree of protection from right-wing political shenanigans!
Garland’s “stuck in the irretrievable past” approach to EOIR and the DOJ generally is blowing a golden, perhaps never-to-come again, chance to finally create an effective progressive judiciary at EOIR and, perhaps most important, to save lives and stop “pushing the St. Louis” back out to sea! It’s something that Biden can’t fully achieve in the Article IIIs. It’s painful to watch him squander the opportunity.
Merrick Garland might well have been a great Supreme Court Justice had Mitch McConnell and the GOP had a serious interest in institutional integrity and preserving norms. They didn’t (which should have been “signal” that got Garland’s attention)! Garland might also have been great Attorney General in a bygone era.
Sadly for both Garland and America, he’s not the “right fit” for the job under today’s realities. Not only will that forever tarnish his reputation, but it could well cost the rest of us our democracy.
🇺🇸Due Process Forever! Timidity and false “restraint” in delivering equal justice for all, never!
The meek might well inherit the earth in the next world. But, they won’t restore the rule of law to the Department of Justice in this one!☠️
Come on, Judge Garland, take off the blinders and show that you are smart, flexible, and capable enough to get beyond the limitations of your past experiences and take the bold, aggressive, courageous, potentially controversial, yet absolutely necessary and long overdue, actions necessary to restore the rule of law at Justice in the 21st year of the 21st Century. And, that starts with progressive due process reforms and major personnel changes at EOIR!
PWS
07-26-21
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HISTORICAL ADDENDUM FROM HON. “SIR JEFFREY” CHASE:
I actually had Civiletti’s desk at the BIA (I was told that Tony Moscato had brought it with him from Main Justice).
“Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.”
The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on behalf of three applicants who sought to represent a nationwide class of individuals whose applications were rejected under the policy. They alleged that the policy was nothing more than a pretextual basis for denying applicants the opportunity to obtain humanitarian benefits provided by Congress.
On December 22, 2020, the agency agreed to suspend the policy, and the parties then entered settlement discussions to address the tens of thousands of applications that USCIS previously rejected. The U.S. district court adopted and approved the final settlement agreement on July 20, 2021.
Under the settlement agreement, USCIS will accept the original submission date of the more than sixty thousand applications it has identified as having been rejected under the policy. USCIS will send notices to these applicants explaining the steps they can take to ensure that their applications for humanitarian benefits are recorded as having been filed as of the date they were originally submitted. Without this relief, these applicants not only would suffer the delays caused by USCIS’ rejection of their applications, but many applicants or their family members would be rendered ineligible because they were unable to file the required forms by timelines specified in the statute.
In addition, the settlement agreement prevents the agency from adopting a similar rejection policy with respect to other immigration forms unless authorized by statute or lawfully implemented through regulations.
“It was an outrageous policy clearly aimed to impede individuals from obtaining the humanitarian benefits that Congress has provided,” said Matt Adams, Legal Director for NWIRP. “It aptly demonstrates the Trump administrations’ utter disregard of the law.”
“USCIS’ rejection policy served no legitimate purpose,” said Mary Kenney, Deputy Director for NILA. “Tens of thousands of applicants will now, finally, be able to move forward with applications that the agency should have accepted in 2020.”
The settlement agreement is here and order approving the settlement agreement can be found here.
#####
Media contacts:
Trina Realmuto, National Immigration Litigation Alliance
Cruelty, stupidity, illegality, wasting Government resources! So, what else is new about the Trump kakistocracy’s immigration policies and procedures? Wonder why all immigration agencies are running out of control backlogs? Don’t blame the victims — the migrants exercising their legal rights!
In direct contravention of the intent of Congress in structuring DHS so that the “customer services” to migrants and their families would be separate, and no longer subordinate to, immigration enforcement, the Trump kakistocracy turned USCIS into a semi-useless branch of their corrupt, yet inept, White Nationalist enforcement agenda. So incompetent and inappropriate were Trump’s actions that his lackeys managed to “repurpose” USCIS, once one of the few self-sustaining independently funded agencies within Government, into a deficit promoting, bankrupt, money pit.
And, it was a cesspool that failed miserably in its primary mission of serving those seeking legal immigration status, their families, and their employers. A primary reason why the Biden Administration is having difficulties with immigration and human rights is the illegal eradication by the Trump regime of the U.S. legal immigration system, particularly our refugee and asylum systems.
That leaves those suffering from persecution and torture in need of legal protection with no choice but to use the “extralegal system.” Far from their stunningly false claim to have “enhanced” immigration enforcement, the GOP nativists have also destroyed rational, practical, targeted enforcement with their nonsense. Don’t let them get away with blaming the Biden Administration and the victims of their cruel and often illegal behavior which produced the results that many of us predicted!
The next time you hear Ted Cruz, Tom Cotton, or some other GOP nativist restrictionist disingenuously blabbering on about “rewarding lawbreakers” or “doing it the right way,” remember that largely because of them and the Trump regime, America has no functional immigration system for refugees, asylees, or any other type of legal immigrants, nor do we have a functioning Immigration Court system!
