"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.
Trump has brought impunity to the highest office in the land, wielding a wrecking ball to the most precious windowpane of all – American democracy.
The message? A president can obstruct special counsels’ investigations of his wrongdoing, push foreign officials to dig up dirt on political rivals, fire inspectors general who find corruption, order the entire executive branch to refuse congressional subpoenas, flood the Internet with fake information about his opponents, refuse to release his tax returns, accuse the press of being “fake media” and “enemies of the people”, and make money off his presidency.
And he can get away with it. Almost half of the electorate will even vote for his reelection.
A president can also lie about the results of an election without a shred of evidence – and yet, according to polls, be believed by the vast majority of those who voted for him.
Trump’s recent pardons have broken double-pane windows.
Not only has he shattered the norm for presidential pardons – usually granted because of a petitioner’s good conduct after conviction and service of sentence – but he’s pardoned people who themselves shattered windows. By pardoning them, he has rendered them unaccountable for their acts.
They include aides convicted of lying to the FBI and threatening potential witnesses in order to protect him; his son-in-law’s father, who pleaded guilty to tax evasion, witness tampering, illegal campaign contributions, and lying to the Federal Election Commission; Blackwater security guards convicted of murdering Iraqi civilians, including women and children; Border Patrol agents convicted of assaulting or shooting unarmed suspects; and Republican lawmakers and their aides found guilty of fraud, obstruction of justice and campaign finance violations.
It’s not simply the size of the broken window that undermines standards, according to Wilson and Kelling. It’s the willingness of society to look the other way. If no one is held accountable, norms collapse.
Trump may face a barrage of lawsuits when he leaves office, possibly including criminal charges. But it’s unlikely he’ll go to jail. Presidential immunity or a self-pardon will protect him. Prosecutorial discretion would almost certainly argue against indictment, in any event. No former president has ever been convicted of a crime. The mere possibility of a criminal trial for Trump would ignite a partisan brawl across the nation.
Congress may try to limit the power of future presidents – strengthening congressional oversight, fortifying the independence of inspectors general, demanding more financial disclosure, increasing penalties on presidential aides who break laws, restricting the pardon process, and so on.
But Congress – a co-equal branch of government under the Constitution – cannot rein in rogue presidents. And the courts don’t want to weigh in on political questions.
The appalling reality is that Trump may get away with it. And in getting away with it he will have changed and degraded the norms governing American presidents. The giant windows he’s broken are invitations to a future president to break even more.
Nothing will correct this unless or until an overwhelming majority of Americans recognize and condemn what has occurred.
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Read Reich’s full article at the link.
As I have mentioned, the lack of accountability could be a problem for the Biden-Harris Administration. And, 74 million voters who pulled the lever for an overtly corrupt, anti-American, racist, clown is an even bigger obstacle to the future of our nation.
On the other hand, although he was a “minority President” from the git go, Trump had nothing but contempt for the majority of us who didn’t favor his maliciously incompetent and divisive policies; he completely disregarded both truth and the common good.
Biden and Harris start with something that Trump never had — the support of a clear majority of 7 million plus voters. So, if they govern wisely, humanely, and in the public interest they could succeed in saving our nation from the 74 million who joined Trump’s war against American democracy. And despite their short-signtedness and intransigence, the 74 million and their families in Trumpland will get the benefits of better government in the public interest. Sometimes, you have to save folks in spite of themselves.
If the policies of decency, honesty, courage, and governing in the public interest work, it could create a longer-term governing majority. If not, it will still be worth a shot at saving our democracy. Another Administration of Trump and his minority minions would be the end of our democracy anyway —the majority of us have little to lose by giving it our best shot with the Biden Harris Team!
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Jacob Soboroff reports for NBC News:
Inside the effort to provide mental health care to migrant families
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Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.
Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).
The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”
Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.
As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.
But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Michelle Mendez @ CLINIC reports:
Court Grants Class Certification and Amends Preliminary Injunction in USCIS UC Asylum Jurisdiction Litigation
On December 21, 2020, the U.S. District Court in Greenbelt, Maryland granted Plaintiffs’ motion for class certification in J.O.P. v. DHS, No. 19:1944, a lawsuit challenging a May 31, 2019 USCIS policy limiting USCIS asylum jurisdiction over applicants previously determined to be “unaccompanied alien children.” The court certified the following class:
“All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child (“UAC”); and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits.”
Simultaneously, the court granted in part Plaintiffs’ motion to amend the nationwide preliminary injunction to prevent USCIS’s deference to EOIR jurisdictional determinations and to prevent ICE’s advocacy against USCIS initial jurisdiction. The court denied Plaintiffs’ request to amend the preliminary injunction to prevent USCIS from rejecting jurisdiction based on its expansion of the “affirmative act” exception from the 2013 Kim Memo, instead granting Plaintiffs 21 days to amend their complaint to encompass this claim. Please see CLINIC’s litigation webpage for the court’s December 21, 2020 memorandum opinion and order, as well as other case-related documents.
As amended, the preliminary injunction has the following components:
It enjoins USCIS from relying on the 2019 policy for any purpose. USCIS is barred from “rejecting jurisdiction over any asylum application filed by Plaintiffs and members of the class whose applications would have been accepted” under USCIS’s previous policy, articulated in the 2013 Kim Memo.
It enjoins USCIS from deferring to EOIR jurisdictional determinations. USCIS is barred from “deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by Plaintiffs and members of the class.”
It orders USCIS to retract adverse decisions already made. USCIS must “retract any adverse decision rendered on or after June 30, 2019 that is based in whole or in part on any of the actions enjoined and restrained” as described above.
It enjoins ICE from advocating against USCIS initial jurisdiction. Where a class member’s asylum application is pending before USCIS, ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.
Counsel for the Plaintiffs will continue to provide updates to practitioners as this litigation progresses. Advocates for clients: (1) who receive adverse decisions dated on or after June 30, 2019 that violate the terms of the amended preliminary injunction; or (2) in whose removal proceedings ICE advocates in violation of the amended preliminary injunction should contact Plaintiffs’ counsel Mary Tanagho Ross, mross@publiccounsel.org, and Kevin DeJong, KDeJong@goodwinlaw.com.
Thank you,
Michelle N. Mendez | she/her/ella/elle
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
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Thanks for another “great news” report, Michelle, my friend!
Finally, at long last, some Article III judges are “calling out” the highly unethical and glaringly unconstitutional “partnership” between ICE enforcement and EOIR to screw asylum seeking kids.
The EOIR White Nationalist agenda 🏴☠️ of limiting legitimate continuances and administrative closing to mindlessly, improperly, and inefficiently proceed in Immigration Court on matters that should be resolved through USCIS adjudication is not only thoroughly corrupt, but also totally counterproductive, as uncontrollably mounting EOIR backlogs and increasing Article III Court interventions have shown.
And, the completely unconstitutional and unethical call early on by corrupt former AG Jeff “Gonzo Apocalypto” Sessions 🤮 for “his wholly owned EOIR judges” to join their “ICE enforcement partners” in racist immigrant bashing initiatives should long ago have been a basis for the Article IIIs to declare this entire ungodly mess in the Immigration Courts to be unconstitutional under the 5th and 14th Amendments.
Thanks to you and other members of the NDPA, Michelle, for all you have done and continue to do to expose corruption, illegality, and wrongdoing in the regime’s sprawling, out of control, immigration kakistocracy! Now, we need you and other members of the NDPA like you on the Federal Bench to short circuit all the BS and get sane, legal, humane policies and “best interpretations and practices” in place “from the git go” and then enforce them on recalcitrant bureaucrats.
Racial Justice in America is, as it must be, one of the top Biden-Harris priorities! 🇺🇸 It can only be achieved if the White Nationalist mess at EOIR and ICE is cleaned up and replaced with experts committed to due process, fundamental fairness, and human rights in charge! There must be new, dynamic, and courageous leadership committed to controlling and reforming the actions of civil servants throughout government who furthered Stephen Miller’s vile racist agenda unlawfully and immorally targeting immigrants of color, their families, and their communities. “Injustice anywhere is a threat to justice everywhere” (MLK, Jr.).
Time for the NDPA ⚖️🗽🧑🏽⚖️👩⚖️ to replace the EOIR Clown Show🤡!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Transactional Records Access Clearinghouse
Immigration Court Case Completion Times Jump as Delays Lengthen
FOR IMMEDIATE RELEASE
Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
New cases continue to drastically outpace case completions. In October and November 2020, the Immigration Courts received 29,758 new filings. This is fewer filings than usual, but still almost twice the 15,990 cases they completed.
As a result, the court’s active backlog at the end of November 2020 reached 1,281,586. This is up 18,821 cases in just the last two months. Adding to the court’s workload are not only new filings, but previously closed cases that have been reopened, remanded for reconsideration, or otherwise placed back on the court’s docket.
Disposition times for closed cases have also shot up this year. Cases disposed of in FY 2020 took on average 460 days. During the first two months of FY 2021, the courts disposed of a much smaller number of cases, but the disposition times were much longer at an average of 755 days—or 64 percent longer. The longest disposition times were found in the Cleveland Immigration Court where it took on average 1,617 days.
For the latest disposition times at each Immigration Court read the full report at:
To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through November 2020, use TRAC’s Immigration Court tools here:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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As mom used to say, “Haste makes waste.” Taking more time to decide cases would be perfectly defensible if it actually produced useful deliberation, thoughtful scholarship, and just and fair results. But, this currently is a system that must limit its intake while it develops the expertise, scholarship, analytical skills, quality control mechanisms, and best practices necessary for judicial efficiency that complies with due process and fundamental fairness (not to mention basic asylum law). That’s a “complete rebuild.”
Then, once that system is running well, it could be methodically and rationally expanded, if actually necessary. But, aimlessly building more assembly lines producing defective products and then ratcheting up the speed will, not surprisingly, produce nothing except more dangerous and defective products.
Not exactly rocket science that a bunch of hacks implementing racist policies, trying to speed up the assembly line, engaging in “Aimless Docket Reshuffling,” eradicating due process, discouraging fairness and deliberation, eliminating their own jurisdiction to control the dockets, and denying everything while mindlessly throwing more resources into a broken beyond belief “(non)system” at war with its own essential employees and those whom it (dis)serves would produce total chaos and dysfunction.Also, throw in lack of best technology and overt disregard for public health and safety.
And, while this is going on, an undisciplined, out of control, and for all practical purposes worse than useless ICE continues to pour new cases into the maelstrom at twice the rate it can get turn them out! As the late NY Met’s Manager Casey Stengel once said, “Can’t anyone here play this game?”
This is an ongoing and increasingly visible unmitigated national disgrace. It’s also an abuse of public funds and a betrayal of the public trust — fundamentals of sound government.
And, it won’t be “swept under the table” in the finest tradition of incoming Administrations. As I’ve said before, the Biden-Harris Administration either fixes EOIR🤡 immediately with some new faces with real expertise, or it “owns” it. And, the current White Nationalism infested atrocity and den of “malicious incompetence” at EOIR🤡 is not something an Administration striving to achieve equal justice and racial reconciliation should want to own!
Due Process Forever!
Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
. . . .
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Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Board of Immigration Appeals has issued a decision in Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).
(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.
PANEL: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration Judges
OPINION BY: Judge MULLANE
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So, with the overt politicization and precipitous decline in reliability of DOS Country Reports, expert opinions have become of increasing importance in asylum cases. And, the are many great experts and groups providing alternatives to the skewed DOS reports these days.
So, what’s really needed in NOT more encouragement for IJs, many of whom lack real asylum expertise, to find ways to downgrade or dismiss experts. What is essential, is new guidance: 1) honestly recognizing that this Administration’s anti-asylum and inappropriate ideological agendas have undermined the credibility of DOS reports; and 2) describing ways in which IJs should be using alternatives, like expert testimony and reports, to support grants of protection to applicants who need and deserve them.
Credible applicants are supposed to be given the benefit of the doubt. Today’s EOIR has “made mincemeat” of that principle.
It is time to rethink the evidence so often submitted and relied upon in asylum claims, to dial back the corroboration demands, and to return to a core principle of refugee law – the need to afford asylum seekers the benefit of the doubt. We need a better way to establish asylum eligibility and challenge stereotypes.
Appropriate guidance is not going to happen until the present BIA is replaced by real appellate judges who are experts on asylum law, due precess, fundamental fairness,and who have experience representing asylum seekers in the real world. Hopefully, that long overdue day, is within sight: “Hey hey, ho, the EOIR Clown Show has got to go!
Due Process Forever!
PWS
12-20-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Mary Kenney, Deputy Director, National Immigration Litigation Alliance (“NILA”) writes:
Hello all –
NILA, NWIRP, AIC and the Law Offices of Stacy Tolchin are thrilled to announce that the district court just granted declaratory and injunctive relief in our nationwide class challenge to A-File FOIA delays, Nightingale v. USCIS. The court orders:
Declaratory relief due to Defendants DHS, USCIS and ICE’s pattern or practice of failing to make timely A-File FOIA determinations;
Injunctive relief permanently enjoining Defendants from further failing to adhere to the statutory deadlines for A-File FOIA requests;
That Defendants to make determinations on all backlogged FOIA requests within 60 days; and
That Defendants submit quarterly compliance reports to the Court and class counsel going forward.
Here are some great findings from the Court:
Defendants’ “delay in processing A-File FOIA requests . . . . undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”
“A comprehensive remedy is needed and is long overdue.”
“[S]ince 2017 these defendants have employed aggressive immigration enforcement policies that made an increasing [A-File FOIA]workload predictable and expected. The unfortunate reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files. Given the critical importance of the information in A-Files to removal defense and legalizing status, it is not at all surprising that the number of A-File FOIA requests have increased along with this increase in immigration enforcement.”
“USCIS also complains that it recently tried to increase its fees through a new regulation that could have added more resources to its FOIA budget, but that effort is currently preliminary enjoined in this District. . . . . This argument is particularly troubling as it insinuates that FOIA processing is entirely dependent on the fees paid by the very people who are harmed by the defendants’ delays.
Congrats to Mary and everyone else involved in this extraordinary “team effort” to hold the immigration bureaucracy (now “kakistocracy”) accountable after years of unacceptable and illegal conduct which has directly undermined the rule of law and immigrants’ rights!
So, let’s summarize the absurdity, and not let the “malicious incompetents” at EOIR off the hook, either:
With well over 1 million backlogged cases, many pending for years, EOIR chooses to “expedite and prioritize” “not quite ready for prime time” recent cases, without giving the private parties adequate time to prepare, or even get lawyers in many cases;
In “cahoots” with DHS, EOIR insures that cases will be scheduled without regard to the delays in getting the necessary file material from DHS via FOIA requests;
EOIR fails to impose reasonable discovery rules on DHS, nor do they insist, as any ”real” court would, that no case will be scheduled for a merits hearing until DHS complies with respondents’ reasonable requests for file materials;
USCIS, once a “self-funding agency,” improperly diverts resources to bogus racist inspired, enforcement activities;
As a result of this gross mismanagement, USCIS falsely claims “bankruptcy,” and illegally tries to increase FOIA fees, a move properly blocked by Federal Courts;
USCIS then falsely blames respondents for the discovery delays caused by its own misappropriation of resources and racist policies.
The solution:The Biden Administration must immediately oust the White Nationalist kakistocracy ☠️ at DHS and EOIR and replace it with competent experts from the NDPA who will restore order, rationality, professionalism, efficiency, and integrity to a dysfunctional system that has undermined the public interest and common good.
It’s not rocket science! Just competence, morality, and humanity.
Congrats to my friend Zachary Nightingale, Partner at Van Der Hout LLP, in San Francisco, who was the “lead named plaintiff” in this “sure to be famous” case. The “Nightingale rule” and “getting the Nightingales” are likely to become synonymous with what passes for “discovery” in Immigration Court, at least until we get Article 1.
Job Opportunity:Clock Repair Technicians Wanted. Start Date: January 21, 2021. Location: DHS & EOIR. Duties: Fix broken “asylum work authorization clock 🕰” to account for reality that most major delays in completing asylum hearings consistent with due process are caused by the Government’s incompetence, elevation of racist enforcement initiatives over due process and fundamental fairness, and “Aimless Docket Reshuffling,” NOT by asylum applicants and their (often pro bono or “low bono”) representatives. Draft legislation to repeal this irrational, unnecessary, and counterproductive statute.
PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.
OPINION BY: Judge HARTZ
KEY QUOTE:
On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).
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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!
This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers.
In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current grossly defective leadership.
I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals.
Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!
The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law.
Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice. It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!
Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”
Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.
We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!
Thanks, Professor Hong to you and your dedicated“crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!
In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.
This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community. As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.
But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality! Things don’t have to be the way they are now at EOIR!
To use another sports analogy, we have entered the preseason of the Biden Administration. As any sports fan knows, preseason (which generally starts five or six weeks before the real season begins) is a time for dreaming. During preseason, every team is undefeated, and every fan is permitted to believe that this will finally be the year in which their suffering and loyalty are rewarded.
I’ve spoken to several law school classes this fall via Zoom. One question I’ve been asked by students (both before and after the election) is what reforms I would like to see under the Biden Administration. Although it seemed significantly more likely before November 3 that the Democrats would control both houses, I’ve stuck with the original list. This is, after all, preseason, and I’m allowed to dream.
Just to be clear, Biden will be the 13th president to serve during my lifetime, and the seventh since beginning my career in immigration law. I am well aware that most of the items on my list won’t happen; I wouldn’t be surprised if none come to pass. Maybe I’ll continue that thought in a future blog; this one is devoted to dreaming. That being said, some of the changes I hope to see are:
Safeguarding Asylum: In spite of numerous reminders from Article III courts that it is Congress, and not the Attorney General, that writes our laws, and that in enacting the 1980 Refugee Act, Congress intended to bring our asylum laws into accordance with our treaty law obligations, the Trump Administration showed shameless disregard for these facts, doing everything it could think of to upend Congressional intent by eliminating asylum eligibility to all who apply. Ideally through statute, but if not possible, then at least through regulation, safeguards must be added making it absolutely clear to future administrations that asylum is meant to be a broad and flexible relief from any type of persecution creative persecutors may conceive; that the designated grounds required for such protection are to be interpreted broadly, and that persecution may be attributed to a government providing imperfect protection to its citizens. It is important to note that none of these principles constitute changes to the law, but simply shore up or repair long-existing principles following the storm of the past four years.
An Independent Immigration Court: It is time for the Immigration Courts to be moved out of the Department of Justice, and into independent Article I status. We’ve seen over the past four years the worst-case scenario of what happens when an enforcement agency realizes that it controls the courts that exist to keep that same agency’s worst impulses in check. Article I has been strongly endorsed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many other groups, including the Round Table of Former Immigration Judges. Enacting this change is the only way the integrity and independence of the Immigration Courts can be safeguarded from future attack.
Government Appointed Counsel for Children in Removal Proceedings: This is a no-brainer. In a case before the Ninth Circuit involving this issue, J.E.F.M. v. Lynch, an amicus brief was filed by the states of Washington and California. The brief began: “In this case, the federal government argues that an indigent child charged with removability in a federal immigration proceeding does not, as a matter of due process under the federal Constitution, have the right to be represented by appointed counsel at government expense….Such a position is at odds with principles of ordered liberty and due process. It ignores the reality that indigent children are incapable of representing themselves in an adversarial immigration removal proceeding, let alone raising complex claims of due process or navigating federal administrative and appellate procedure.” The brief continued: “An adversarial immigration system, which depends on the presentation of both sides of a case in a highly specialized area of law, demands that a child, standing alone, be represented by counsel.” The brief was signed (in March 2016) by California’s then Attorney General, Kamala Harris. Hopefully Vice President Harris will work to make this right a reality.
Eliminate Chevron Deference for BIA and Attorney General Decisions: Last year, the Third Circuit, in a concurring opinion by Judge McKee in its decision in Quinteros v. Att’y Gen. (which all three judges on the panel joined), stated that “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.” The court’s observation highlights the problem with according broad deference to those who use their decision-making authority for politically motivated ends.
In a blog post earlier this year, I highlighted three recent scholarly articles questioning the continued propriety of applying Chevron’s principles to decisions of the BIA concerning asylum, or to any decisions of the Attorney General. I believe Article I status would resolve this problem, as decisions issued by an independent court outside of the executive branch would no longer constitute the interpretation of an executive branch agency covered by Chevron. In the meantime, Congress and/or the Department of Justice should consider means of exempting such decisions from Chevron deference, and thus keep both the BIA and Attorney General honest in their efforts to reach neutral and fair results.
Create a “Charming Betsy” Reg Requiring Adherence to International Law: Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible. As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance. Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Eliminate or Curtail the Attorney General’s Certification Power: Until Article I becomes a reality, Congress must pass legislation that either eliminates or at least seriously limits the Attorney General’s certification power by removing the ability to rewrite established law on a whim. At most, the Attorney General’s role should be limited to requesting the BIA to reconsider precedent in light of interceding Supreme Court or Circuit Court decisions, changes in law or regulations, or other legal developments that might materially impact the prior holding. Furthermore, any right to certify must be limited to cases before the BIA, and to actual disputes between the parties arising in the proceedings below.
Revamp Immigration Judge Training: This is more important than it might sound. Conservative commentator Nolan Rappaport has commented on the inadequacy of Immigration Judge training, particularly where many recent appointees come to the bench with no prior immigration experience. This problem predates the present administration. Under Attorneys General Holder and Lynch, the BIA in particular was extremely resistant to exposing its judges and attorneys to views not considered part of the official party line. During that period, I was amazed at how the BIA’s vice-chair (who continues to hold that position up to present) viewed respected immigration experts as the enemy, and employed a director of training and subject matter experts whose only qualification was their willingness to shield EOIR employees from outside sources. This problem has worsened over the past four years. A committee including not only those within EOIR, but also academics and members of the private bar should be formed to completely rethink the curriculum and resources available to judges and support staff.
Copyright 2020 Jeffrey S. Chase. All rights reserved. Reprinted with permission.
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Jeffrey’s point on training is particularly well-taken. This has been a festering “below the radar screen” problem at EOIR for decades.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey’s analysis supports my call for the immediate end of the “EOIR Clown Show” and the replacement of EOIR Senior “Management” and the entire BIA with expert “practical scholars” from the NDPA. Indeed, one of the most grossly “underrepresented” groups in the current Immigration Judiciary are those who gained their expertise and courtroom knowledge as clinical professors! That group includes some of the finest legal minds I have run across in nearly 50 years of government, “big law,” and academic practice.
In my experience, EOIR training ranged from the “minimally adequate,” to the sadly comical, to the overtly insulting. In the latter category were the years we had no in person training and were sent a series of “mandatory videos.” Some were inaudible; others wrong or misleading; a few were actually reprises of BIA “staff brown bag lunches.” “Amateur Night at The Bijou” to be sure!
It was not that the resources weren’t available. We had among our ranks colleagues like Judge Dana Marks, one of the “Founding Mothers” of U.S. asylum law, who successfully argued the landmark Cardoza-Fonseca (“well-founded fear”) case before the Supreme Court as a private lawyer; and Board Member/Appellate Immigration Judge Lory D. Rosenberg, to my knowledge the only EOIR judge at any level whose legal analysis was favorably cited by name by the Supreme Court in the St. Cyr case (212(c) waiver retroactivity).
Yet instead of getting insights and pointers from these and other luminaries of modern immigration and asylum law, we often were treated to government litigators telling us how to narrowly interpret asylum law or make denial decisions “easier to defend” in the Circuit Courts. One government prosecutor famously informed us that we weren’t really “judges” at all but simply “highly paid immigration inspectors working for the Attorney General.”
Others told us that as “mere DOJ attorneys” we weren’t allowed to claim status as “administrative judges” for state bar purposes, even though by law we were barred from performing non-adjudicative legal functions. This is the kind of nonsense on which some of our limited “training time” was spent. Still others told us that although Congress had granted us statutory contempt authority, the Attorney General was withholding it because we shouldn’t be allowed to hold “other government attorneys” (that is, INS/DHS prosecutors) accountable for their conduct in our “courts” (which, clearly, these bureaucrats didn’t consider “courts” at all, except, perhaps, when arguing against judicial review by the Article IIIs).
Training is important! Many of the Circuit Court reversals highlighted in “Courtside” and on Jeffrey’s blog show grossly deficient understanding and application at both the trial and appellate levels of EOIR of the fundamentals of immigration and asylum law — things like standards of proof, considering all the evidence, judging credibility, and following Circuit and sometimes even BIA precedents favorable to respondents.
This isn’t “rocket science!” They are the “x’s and o’s” of basic due process and fair immigration adjudication. Yet, all too often, EOIR “expert” tribunals (that really aren’t) come up short. Indeed very few members of today’s EOIR judiciary would be generally recognized as “experts” in the field based on their lifetime body of work. A sad, but true, commentary. But, one that can and must be changed by the Biden-Harris Administration!
The BIA should not only be reconstituted as an true “expert tribunal,” along the line of a Circuit Court of Appeals, but as a tribunal that teaches, instructs, and promotes best practices through its jurisprudence.
And, contrary to some of the restrictionist commentary that I continue to read, asylum law following Cardoza, Mogharrabi, the Refugee Act of 1980, and the U.N. Convention & Protocol from which it flows is neither intentionally narrow nor inherently restrictive. As indicated in Cardoza, it could and should properly be interpreted generously and humanely to grant life-saving protection wherever possible. The purpose of the Convention was to set forth legal minimums while inspiring greater protections along those lines.
The “spirit of Cardoza and Mogharrabi” have long been lost, and now gleefully exorcised at the “EOIR Clown Show.” It’s past time for the appointment of competent, expert EOIR judges and administrators from the NDPA. Those who are intellectual leaders with moral courage who will insist on its long overdue restoration and fulfillment of this spirit!
In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.
“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”
. . . .
The progressives say that Democrats must use whatever leverage they can to press their nominees.
“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”
Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.
“I see opportunity here,” Mr. Feingold said.
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Thanks Nan! Read the rest of the article at the above link!
I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary.
That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The mess at EOIR needs immediate attention and aggressive due process reforms. Thisis no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here.
Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.
Sadly, the independence, expertise, and due process performance ofEOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.
The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does!
A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”
This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon!
Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!
Knightess of the Round TableHon. Jeffrey S. “Sir Jeffrey” Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
More great news from Sir Jeffrey:
Hi all: We filed an amicus brief with the Third Circuit last year in a domestic violence withholding and CAT claim from Mexico. The BIA acknowledged that the petitioner was beaten four or five times a month by her abuser; was raped by him several times, and then lost her job as an agro-engineer with a government agency in Mexico after her abuser beat her violently in front of her co-workers, and her employer told her she could not publicly represent the agency with the resulting bruises on her face. The BIA further recognized that her abuser was able to locate her when she tried to relocate within Mexico. And yet withholding was denied on nexus, and CAT denied on government acquiescence grounds.
A number of other groups, including CGRS, filed amicus briefs as well, and OILu moved to remand under favorable terms. Anju Gupta at Rutgers, who represents the petitioner, said that today, the IJ (who was very much made aware of all of the amicus briefs) granted CAT relief.
The email said that the petitioner (who was previously detained at Elizabeth, NJ) is now in Mexico (I’m not clear on the details), but will hopefully be able to return soon based on the grant.
It’s great that we continue to make a positive difference.
Best, Jeff
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Wow! What a great holiday present!
What a great group with a great mission of promoting due process, advocating for equal justice, and saving lives! Every member of the Round Table has saved lives by standing up for the human dignity and legal rights of those who came before us in Immigration Court. And, we continue to “fight the good fight,” in every possible way at every level of the justice system!
“EOIR Clown Show Must Go” T-Shirt Custom Design ConceptMe
Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).
I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”
And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!
42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!
I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.
Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.
* * * * * * *
We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.
Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.
Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!
Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!
Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!
Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!
Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!
Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.
Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.
This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!
Let your voices be heard!
I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”
Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”
After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.
We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all!Experts in justice rather than political and bureaucratic retreads!Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.
Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.
There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!
That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!
The Executive Office for Immigration Review (EOIR) has proposed two rules that would significantly decrease the due process rights of people in immigration court. Both rules would restrict judges’ abilities to manage their dockets and require them to push through cases at breakneck speeds, further transforming the immigration court system into a deportation machine.
The first rule would severely limit the reopening of immigration cases after a judge enters an order of removal. Respondents or their attorneys routinely file motions to reopen because of previously unavailable evidence, changed country conditions, or a lack of proper notice of a hearing. This opportunity is crucial for people who are eligible for relief but were ordered deported for reasons beyond their control.
The rule would limit the reasons for which a case can be reopened, requiring significantly more evidence. This means that fewer people could overturn a deportation order, even if they now had another way to remain in the United States. The respondent would have to include their application for relief with the motion. Once their case is reopened, they would be barred from applying for any other kind of relief.
EOIR’s new rule would further limit case termination, a tool judges used in the past to remove low-priority cases from their dockets. It would also end nearly all discretionary stays of removal, which temporarily prevent a deportation in emergency situations.
Before the Board of Immigration Appeals would even consider an emergency stay of removal, immigrants would have to ask for a stay from U.S. Immigration and Customs Enforcement and wait up to five business days for a response. This delay could make the process practically useless in true emergencies.
The second rule would end most continuances in immigration court. Respondents and their attorneys, as well as attorneys for the Department of Homeland Security, frequently file motions for a continuance to request that an immigration judge delay a hearing.
Regulations currently allow judges to grant continuances if “good cause” exists, but do not provide a definition of “good cause.” For years, judges were allowed significant discretion in this area. A 2018 Attorney General decision limited the situations that were considered “good cause” for a continuance.
The proposed rule writes those restrictions into federal regulations, it would go even further by declaring that a wide variety of situations are not “good cause” for a continuance—even many situations where continuances are routinely granted under current rules.
For example, the new rule would severely limit continuances for immigrants who need to find a lawyer or appl for a form of relief outside of immigration court. Currently, judges are required to grant at least one continuance for respondents to find a lawyer if requested.
Under the proposed rule, immigration judges would not have to allow respondents time to find legal representation. Instead, they would be discouraged from giving an immigrant more time to find a lawyer. The only exception would be the rare cases in which a hearing occurs fewer than 30 days after the Notice to Appear is filed.
Eliminating docket-management tools could worsen the backlog.
Placing stricter requirements on these tools require judges to write longer justifications when they do grant them. Forcing immigrants to apply for relief in front of an immigration judge when they will likely be granted relief by U.S. Citizenship and Immigration Services is an unnecessary use of the judge’s time. Many continuances allow respondents to find an attorney, which can shorten overall case completion time. Denying continuances can also increase the appeal backlog.
The public can comment on both the first and second proposed rules through December 28, 2020. It is extremely unlikely that the Trump administration could meaningfully review comments, respond to them, and finalize these rules before Biden’s inauguration on January 20, 2021.
Instead of pursuing policies that restrict due process for people seeking relief, EOIR should restore a full set of discretionary tools to immigration judges, including administrative closure, termination, and continuances. Judges can only make fair decisions in each unique case if allowed to manage their own dockets.
And many thanks to my friend Judge Alex Manuel over at the ABA National Conference of the Administrative Law Judiciary for bringing Katy’s outstanding and “accessible” analysis to my attention.
Along with my NAIJ colleagues Judge (Retired) Joan Churchill and Judge Mimi Tsankov, Judge Manuel has been a tireless activist, forceful advocate, and supporter of judicial independence for Immigration Judges and all Administrative Judges in government.
As Katy clearly and cogently says, far from reducing the backlog, these beyond idiotic proposals would further add to the already astounding backlog that the “malicious incompetents” at DOJ/EOIR/DHS have built over the past four years. Their “redesign” of the Immigration Courts into a “deportation railroad” has been a total “train wreck” (without minimizing the actual lives ruined and futures lost in “America’s Star Chambers” and the lasting damage inflicted on our justice system and our democracy)!
Let’s go over the basic principle for rationalizing dockets and eliminating backlogs as I have recently stated in speeches and other public presentations:
Treating individuals with unfailing fairness, simple courtesy, and respect, granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. And, it saves lives!
The current Falls Church kakistocracy must be immediately removed and replaced with qualified members of the NDPA committed to the foregoing principle.
Agitate, agitate, agitate with everyone you know with any influence in the incoming Biden-Harris Administration to insure that the curtain comes down for good on the EOIR Clown Show and that the Immigration Courts are independently run by real judges and real judicial administration from the NDPA who are unswervingly committed to “guaranteeing fairness and due process for all!”
While we’re at it, compare Katy’s clear, succinct, understandable analysis with the turgid political gobbledegook that infects everything coming out of EOIR these days, from ridiculous regulations, to lousy anti-immigrant precedents, to nonsensical scheduling directives issued by the mid-level “clown apprentices” in the Falls Church circus! Obviously, when the Biden Administration and the NDPA reconstitute the EOIR public information function (A/K/A the “Politburo of Nativist Propaganda”) Katy should be high on the list of new faces who could help and support radical due process reform, innovation, and advancement at EOIR!
It’s not just a question of “repairing the damage.” It’s about unleashing creativity, innovation, and better, more progressive judging that not only will make the original “EOIR vision” a reality but will lead to long overdue improvements in the Article III Judiciary and throughout the American justice system! If there is anything the last four years have taught us, it’s that we can and must do better as a nation to achieve equal justice under law. With better judicial leaders from the NDPA in charge, EOIR can not just be part of the solution, but can lead the way to better justice for America!
Repeat after me, “Hey, hey, ho, ho, the EOIR Clown Show has got to go!” Then, let the Biden-Harris Transition know!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Hon. Sarah Burr Retired U.S. Immigration Judge Knightess of The Round Table Photo Source: Immigrant Justice Corps websiteHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judgeship
Sir Jeffrey Chase reports:
Attached is the decision of U.S. District Judge Alison J. Nathan of the Southern District of New York ordering ICE to present detained noncitizens before an immigration judge within 10 days of their arrest. It was not unusual as recently as early last year for noncitizens detained by ICE who were eligible for release to wait weeks or months to see an IJ for the first time.
Sarah Burr filed a declaration in support of the litigation that counsel acknowledged was critical to the outcome. Congrats, Sarah, and thanks for your extraordinary efforts on behalf of due process!
Whether as individuals or a group, we continue to make a difference in important decisions.
Best, Jeff
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Thanks, and congrats, Sarah!
You are indeed one of the Round Table’s leading “warrior-princesses!”
Knightess of the Round Table
Your fighting spirit and lifelong dedication to the battle to achieve “due process for all” are a constant inspiration to all of us in the Round Table and the NDPA!
A federal judge on Friday ordered the Trump administration to fully restore an Obama-era initiative that protects undocumented immigrants brought to the U.S. as children from deportation, requiring officials to open the program to new applicants for the first time since 2017.
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Read the rest of the article at the link. Here’s Judge NICHOLAS G. GARAUFIS’s decision:
Here’s the most telling quote from that decision describing Wolfman’s continuing scofflaw shenanigans:
2 The court believes it made clear that the subsequent attempts of Admin- istrator Peter Gaynor to reinstate Kevin McAleenan’s unauthorized “November Delegation” and Mr. Wolf’s attempt to ratify his prior actions are dead letter. See Batalla Vidal, 2020 WL 6695076 at ,·,9_ Administrator Gaynor, undeterred, issued yet another “Succession Order” just hours after the court issued its opinion on November 14, and Mr. Wolf once again attempted to ratify his prior actions as Acting Secretary on November 16. (See Gaynor Order of Nov. 14, 2020 (Dkt. 348-2); Wolf Ratification of Nov. 16, 2020 (Dkt. 348-3).) Of course, for the exact same reasons, those doc- uments have no legal significance. Neither Administrator Gaynor nor Mr. Wolf currently possesses, nor have they ever possessed, the powers of the Acting Secretary of Homeland Security. See Batalla Vidal, 2020 WL 6695076 at *9.
Says it all. Obviously, ethics have become “optional,” at best, at DOJ and DHS. That’s certainly going to be a problem for the incoming Biden Administration.
This is “civil” litigation, where the Government and its corrupt officials like “Wolfman the Illegal” have no right to a “day in court” to defend their frivolous positions. For the last four years, Government lawyers have regularly been putting forth obvious pretexts, false narratives, and frivolous positions in defense of the regime’s racist immigration agenda. Basic “due diligence” on some of the outlandish assertions by regime officials has become a forgotten concept.
The breakdown in ethics, and the general unwillingness of Federal Judges to enforce ethical requirements on Government lawyers and Trump’s personal lawyers to the same extent they would on the private bar, has become a potentially debilitating legal scandal emerging from four years of kakistocracy!
For the last month, we have been subjected to a barrage of totally frivolous litigation openly pursued by Rudy and the other clowns on “the Big Loser’s” so-called “litigation team” designed for the dual purposes of 1) undermining our democracy, and, 2) assisting in a fundraising scam being conducted from the Oval Office to corruptly line the pockets of the Trump family. These aren’t “state secrets.” The fraud and disloyalty to our nation and our constitutional institutions is right out there in plain view!
Yet Rudy and his buddies aren’t in jail. Stunningly, after publicly conducting a nationwide losing scheme of frivolous litigation and lies, they are still licensed to practice law!
The good news: DACA kids get another shot! And, the incoming Biden-Harris Administration has vowed to protect them. The regime’s disgusting four-year White Nationalist effort to dump on them, led by notorious racists like “Gonzo” Sessions, Miller, Cooch, and Wolfman, has gone down in a blaze of scofflaw behavior and “malicious incompetence.” Like the “Big Loser.”
