Immigration & Customs Enforcement (“ICE”) – Page 27

THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

She was a Leader of the NDPA before there was an NDPA! Now Michelle Mendez and her CLINIC Team are giving you “the skinny” on how to combat EOIR’s “Raging War on Due Process!”

Friends,

Wanted to share with you two new CLINIC resources:

Practice Pointer: Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

FOIA Disclosures on In Absentia Removal Numbers Based on Legal Representation

An immigration judge may issue an in absentia removal order if the Department of Homeland Security, or DHS, establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing. As documented in the report Denied a Day in Court: The Government’s Use of in absentia Removal Orders Against Families Seeking Asylum, CLINIC learned about these reasons firsthand while representing 46 families released from detention and successfully challenging their in absentia removal orders. Perhaps the main factor for failing to appear at scheduled hearings in immigration court is the presence or absence of legal counsel to orient the respondent through the layers of government bureaucracy and the complex immigration system.

On November 18, 2019, CLINIC submitted a Freedom of Information Act, or FOIA, request to the Executive Office for Immigration Review, or EOIR, seeking data on the number of in absentia removal orders issued based on legal representation status. CLINIC requested three sets of in absentia order data: the total number of in absentia removal orders issued since 2008, the number of in absentia orders issued to Unaccompanied Children, or UACs, since 2008, and the number of in absentia orders issued to families classified by EOIR as “Family Unit,” FAMU, cases since November 16, 2018. On March 13, 2020, EOIR responded with a three-tab Excel spreadsheet of raw in absentia removal order data. CLINIC has calculated the in absentia removal order raw data into percentages.

Here are some key takeaways from the data:

Although, according to EOIR statistics, the current overall representation rate is 65 percent for all pending cases, those who are unable to secure representation are at extraordinary risk of receiving in absentia removal orders. 92.6 percent of those with in absentia orders issued in fiscal year, or FY, 2020 were unrepresented.

Although, according to EOIR statistics, the current overall representation rate is 68 percent for all UAC pending cases, UACs who are unable to secure representation are also at extreme risk of receiving in absentia removal orders. 88 percent of those with in absentia orders issued in fiscal year FY2020 were unrepresented.

Since 2008, the percentage of unrepresented respondents with in absentia removal orders has been at least double that of in absentia orders of removal issued to represented respondents.

Since 2008, at least 70.8 percent of UACs who were issued in absentia orders of removal were unrepresented and, so far this fiscal year, the unrepresented rate for UACs who received in absentia orders of removal has been the highest ever, at 88 percent.

The number of in absentia removal orders issued by EOIR to unrepresented respondents in FY2020 surpassed the total number of in absentia orders issued to unrepresented respondents in FY2019 in just the first five and a half months of FY2020.

EOIR has issued more in absentia removal orders in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia removal orders from FY2008 through FY2016 were 246,893. Total in absentia removal orders from FY2017 through FY2020 (through March 13, 2020), were 267,696

EOIR has issued more in absentia removal orders to UACs in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia orders of removal issued to UACs from FY2008 through FY2016 were 20,123. Total in absentia removal orders issued to UACs from FY2017 through FY2020 (through March 13, 2020), were 26,228.

During the date range covered by the data (FY2008 through FY2020 Q2), immigration judges issued the fewest number of in absentia removal orders in FY2012, the year that DHS announced DACA. During FY2012, DHS officially launched the prosecutorial discretion program in November 2011 and reviewed many pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion.

Most immigration courts saw a decrease in in absentia orders of removal for unrepresented noncitizens in FY2012 compared to FY2011.

Unrepresented UACs suffered a huge jump of in absentia removal orders from FY2014 (1,701) to FY2015 (5,836). This hike in in absentias for UACs occurred concurrently with the increase in UACs fleeing El Salvador, Guatemala and Honduras, and arriving in neighboring countries and at the U.S.-Mexico border.

89.6 percent of all family units who received an in absentia removal orders from November 16, 2018 to September 30, 2019, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in unrepresented FAMU cases during this period: 4,108 (which translates into 93.8 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Miami Immigration Court issued the second most in absentia removal orders in unrepresented FAMU cases during this period: 3,347 (which translates into 89.5 percent of the total in absentia removal orders issued by this court).

94.2 percent of all family units who received in absentia removal orders from October 1, 2019 to March 13, 2020, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,931 (which translates into 95.62 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Atlanta Immigration Court issued the second most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,662 (which translates into 98.27 percent of the total in absentia removal orders issued by this court).

Oddly, several immigration courts that oversee only detained dockets, including the Elizabeth Detention Center, recorded in absentia removal orders during the FOIA time period.

In FY2020, immigration judges have issued more in absentia removal orders than any prior year since 2008, and we are only five and a half months into the federal fiscal year.

Of all the immigration courts, the Harlingen Immigration Court has recorded the most unrepresented in absentia removal orders overall in FY2020 so far: 8,357.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders overall in FY2020: 753.

Of all the immigration courts, the Miami Immigration Court has recorded the most unrepresented in absentia removal orders for UACs in FY2020: 430.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders for UACs in FY2020: 73.

Thanks for helping us share these!

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.

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

Now, it’s hardly “news” that there is a strong positive correlation between legal representation and appearance in Immigration Court. That information came to light way back in the Obama Administration and has consistently been reinforced by data that contradicts the lies about failures to appear put out on a regular basis by regime officials.

Given the clear correlation, the best way to make a fair due process system function would be if the Government worked hand in hand with NGOs, charitable organizations, local bar associations, and others involved in providing pro bono representation to insure that at least all asylum applicants and children are represented before the Immigration Courts. Due Process and fundamental fairness would be served and the in absentia rate would crater. In other words, due process with efficiency, an achievable “win-win!”

Instead, the Trump regime, through both EOIR and DHS, has made a concerted attack on the right to counsel in a transparent attempt to increase the number of in absentia orders and “speed up the deportation railroad” that EOIR now runs as its “one and only mission.”

How does something masquerading as a “court” system conduct a “deportation railway?” It takes lots of complicity and supposedly responsible public officials and citizens intentionally “looking the other way” and studiously ignoring the obvious!

I hope that advocates will be able to use the data provided by CLINIC to expose to the Article III Courts and Congress the rampant fraud, waste, abuse, and just plain “malicious incompetence” of EOIR and DHS (is there really a difference these days? Not apparent to most of us who follow the “Star Chambers” with regularity.).

Remember, moral cowardice and intellectual dishonesty often begin with picking on the most vulnerable and defenseless among us. And what follows is likely to be unspeakably bad, based on history!

Thanks, Michelle, my friend, for all you and CLINIC do.

Due Process Forever!

PWS

03-29-20

TWILIGHT ZONE: ABSURDITY, CRUELTY, INJUSTICE ARE THE ORDERS OF THE DAY IN “AMERICA’S STAR CHAMBERS” (A/K/A IMMIGRATION “COURTS’) — Podcaster Sam Graber Takes You Inside The Mind Numbing Reality Of A “Third-World Court System” Operating Right Under Our Noses!

Listen to Sam on “American Refugee” here:

LISTEN on the Web – https://odaction.com/americanrefugee-ep03/
LISTEN on Apple devices (Apple Podcasts) – https://pcr.apple.com/id1494027429
LISTEN on Android devices (Spotify) – https://spoti.fi/30r4Efi

In the days leading up to the coronavirus shutdown I journeyed into a shadow part of our justice system, a courtroom rarely seen by the public.

Detained immigration court is a place where lawyers aren’t provided for the defense, where judges and prosecutors are on the same team, where guilty is presumed and the all-too-often verdict a different kind of death.

Who are these immigration judges? What exactly is detained court? And how is it able to get away with operating outside of what we might call normal law?

Get ready because you’re about to go there, to see the injustice that isn’t being shut down.

This is American Refugee.

Written, Engineered & Produced: Sam Graber
Music: Rare Medium, Punk Funk Metropolis, New Sound Underground
Recorded: Minneapolis, MN
Original Release: March 2020

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

Disturbing and infuriating as Sam’s podcast is, I urge everyone to listen, even if you think you know what “really happens” in this godforsaken and deadly “darkest corner of the American ‘justice’ system.” Is this really the way we want to be remembered by generations that follow? As a country with so little collective courage and integrity that we allowed our fellow human beings to be treated this way? Think about it!

Even in this grimmest of worlds, their are true heroes. First and foremost, of course, are the dedicated attorneys of the New Due Process Army (“NDPA”), many working pro bono or “low bono” to vindicate essential legal, constitutional, and human rights in a system designed to grind them into dust and “dehumanize and demonize the other.”

Sound familiar? It should to anyone who studied Hitler’s rise to power in Germany. By and large, it wasn’t the “Brown Shirts” and the party faithful who enabled his rule. It was judges, lawyers, ministers, priests, businessmen, doctors, corporate moguls, and the average German who “facilitated” his annihilation of millions.

And, it started gradually, with laws stripping Jews of citizenship, property, and all legal rights and judges who enthusiastically enforced them, even against their own former judicial colleagues. Once people aren’t “humans” any more (Hitler liked the term “subhumans”) or “persons” before the law, there is no limit to what can be done, particularly when complicit judges join in the “fun and games.”

Among the other heroes are two “Courtside regulars:” Round Table Member Judge (Ret.) Ilyce Shugall and NAIJ President Judge A. Ashley Tabaddor.

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

At a time when too many with knowledge of the travesty of what’s going on in our “Star Chambers” have chosen to look the other way or “go along to get along,” Ilyce and Ashley have consistently “spoken truth to power” in the face of a regime that often abuses its authority by punishing truth, honesty, and decency. Indeed, Billy Barr’s highly unethical move to “decertify” the NAIJ is a blatant attempt to punish and silence Ashley for revealing the truth.

One minor correction. Sam says that the Immigration Judges and the prosecutors both work for the DOJ. Actually, the prosecutors work for DHS. But, it’s largely a “distinction without difference” because the agenda at both DOJ and DHS is set by Trump, Miller, and the rest of the White Nationalist nativist cabal.

Indeed, former AG Sessions told Immigration Judges they were “partners” with the DHS prosecutors in enforcing immigration laws. So, the observation that in many Immigration Courtrooms migrants, including the unrepresented and children, face “two prosecutors” — the “judge” and the DHS Assistant Chief Counsel is accurate. The podcast relates how in some courts the “judge speaks for the prosecution,” the Assistant Chief Counsel is a “potted plant,” and nobody speaks for justice or the rights of the migrants. What’s missing: The impartial “neutral decisionmaker” required by the Due Process Clause of the Fifth Amendment to the Constitution.

Thanks Ashley and Ilyce for all you do! You are true superstars!

As my friend, Professor Ayo Gansallo says on her e-mail profile:

Vote like your rights depend upon it!

“A country is not only what it does…it is also what it tolerates.”

Kurt Tucholsky

Due Process Forever! Star Chambers Never!

PWS

03-29-20

DUE PROCESS WINS IN THE WEST: Split 9th Cir. Slams DOJ’s Vile/Unethical “No Due Process Due” Argument — Orders Bond Hearings For Asylum Applicants Who Passed Credible Fear — Padilla v. ICE — Round Table Amicus Brief Helps Save Due Process!

Padilla v. ICE

Padilla v. ICE, 9th Cir., 03-27-20, published

SUMMARY BY COURT STAFF:

SUMMARY* Immigration

Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.

The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the

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

4 PADILLA V. ICE

member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.

The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the

PADILLA V. ICE 5

government’s interest in the efficient administration of immigration law.

As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.

The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under 8 U.S.C. § 1252(f)(1), which provides: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Examining the relevant precedent, statutory scheme, and legislative history, the panel concluded that here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with congressional intent.

Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on

6 PADILLA V. ICE

remand, the district court must also revisit the nationwide scope.

Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1) barred injunctive relief in this case, concluding that the majority’s opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split with the Sixth Circuit. Judge Bade further wrote that, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the constitution demands. Judge Bade would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief.

PANEL: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

OPNION BY: Chief Judge Sydney R. Thomas

DISSENTING OPINION: Judge Bridget S. Bade

KEY QUOTE FROM MAJORITY OPINION:

The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing’”); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).

Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed

PADILLA V. ICE 25

through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’” (quoting Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen . . .as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.

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

First, and foremost, let’s give a big vote of appreciation to the All-Star Team at Wilmer Cutler who represented our Round Table on this:

Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.

Knjightess — Knightess of the Round Table

This team is it’s own “Special Forces Brigade” of the New Due Process Army (“NDPA”)!

WOW! Persons are “persons” under the Constitution even when they have brown skins and are asylum seekers! How “rad” can you get! What a blow to “business as usual” for the regime and their “Dred Scottification” program of dehumanizing and making non-persons out of migrants and other vulnerable minorities!

Too bad that the Supremes and other Circuit Courts have too often advanced “Dred Scottification,” hiding behind transparently bogus and contrived “national emergencies” and the doctrine of judicial dereliction of duty otherwise known as “Chevron deference.” I guess that’s why the regime has the contempt for both the law and the Article III Courts to press such legally, morally, and Constitutionally “bankrupt” arguments as they did in this case. Never know when you’ll get a “thumbs up” from those who sometimes don’t view oaths of office and their obligations to their fellow humans with enough seriousness!

Significantly, the panel found that “plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a “neutral decisionmaker.” However, in doing so they “papered over” the obvious fact that the constitutional requirement of a “neutral decisionmaker” cannot be fulfilled as long as Billy Barr or other politicos control the Immigration Courts!

Indeed, the panel decision was a strong rebuke of Barr’s atrocious, unethical, scofflaw decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) purporting to unilaterally change the rules to eliminate bond for those who had passed “credible fear.” Fact is that no individual appearing in today’s Immigration Courts has access to the constitutionally-required “neutral decisionmaker” because Barr retains the ability to simply unilaterally change any result that doesn’t match his White Nationalist nativist agenda and can hire and fire the so-called “judges” at will.

Indeed, under Barr’s totally illegal and professionally insulting “production quotas,” I’m not sure that the “judges” on the “deportation assembly line” even get “production credit” for bond decisions because they aren’t “final orders of removal.” However, denial of bond is actually an important “whistle stop” on the “deportation express.” Those kept in the “New American Gulag” have difficulty finding attorneys and the systematic mistreatment they receive in detention helps to demoralize them and coerce them into giving up claims or waiving appeals.

When are the Article IIIs finally going to stop “beating around the bush” and hold this whole mess to be unconstitutional, as it most clearly is?

In some ways, the panel’s decision reminds me of one of my own long-ago concurring/dissenting opinion in Matter of Joseph, 22 I&N Dec. 799, 810 (BIA 1999) (en banc) (“Joseph II”):

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in custody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-vail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

Concern for Due Process and fundamental fairness have intentionally been eradicated in the Immigration “Courts” by Sessions, Whitaker, and Barr. It’s past time for this constitutional mockery to be put out of its misery (and the unending misery it causes for the humans coming before it) once and for all!

As my late BIA colleague Judge Fred W. Vacca once said, albeit in a different context, “It’s time to put an end to this pathetic imitation of an adjudication.” Fred and I didn’t always agree. In fact, we disagreed much of the time. But, he did know when it was finally time to “stop the nonsense,” even when some of our colleagues just kept the system churning long past the point of reason and sanity.

And, folks, that was back in the days when the BIA actually functioned more or less like an “independent appellate court” until the Ashcroft purge of ’03 forever ended that noble vision. Like the rest of the system and those who enable it to keep churning lives as if they were mere water under the bridge, the BIA and the rest of the Immigration “Courts” have now become a national disgrace — a blot on our national conscience. Human beings seeking justice are neither “numbers” to be achieved for “satisfactory ratings,” nor “enforcement problems” to be exterminated without Due Process.

Dehumanization of the “other”and stripping them of legal and human rights is a key part of fascism. It’s what allowed German judges and most of German society to “look the other way” or actively aid in the holocaust. It has no place in our justice system — now or ever!

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

PWS

03-28-20

N.J. STATE BAR SEEKS GOVERNOR’S INTERVENTION AFTER DOJ IGNORES PLEAS TO CLOSE UNSAFE N.J. IMMIGRATION COURTS!☠️☠️☠️☠️☠️

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

NDPA stalwart and Round Table Member Hon. Sue Roy sends this:

March 26, 2020

VIA EMAIL ONLY Hon. Phil Murphy Governor

State of New Jersey Office of the Governor P.O. Box 001

Trenton, NJ 08625

Dear Governor Murphy,

Re: The Closure of the Newark and Elizabeth Immigration Courts

NEW JERSEY STATE BAR ASSOCIATION

EVELYN PADIN, PRESIDENT Law Office of Evelyn Padin 286 First Street

Jersey City, NJ 07302 201-963-8822 • FAX: 201-963-8874 evelyn@lawjcnj.com

The New Jersey State Bar Association (NJSBA) is requesting that the Newark and Elizabeth Immigration Courts be closed immediately, in the interest of the health and safety of the residents of NJ and the country. In support of this request, the NJSBA asks you to consider the following:

NEWARK IMMIGRATION COURT:

On March 6, 2020, the Newark Immigration Court, located on the 12th floor of the Rodino Building, 970 Broad Street, Newark, NJ, was temporarily closed for the afternoon because an attorney who had been exposed to COVID-19 and who was experiencing symptoms was present in court.

On March 9, 2020, the Newark Immigration Court reopened, and remained open until March 18, 2020. During that period of time, literally thousands of respondents and their family members were required to appear at master calendar and individual hearings, along with their attorneys, attorneys from the Office of Chief Counsel, Court staff, interpreters, security guards and Immigration Judges.

It was later learned that a second private attorney and an interpreter have tested positive for COVID-19 after being in court on March 11, 2020. The attorney is quite ill. Approximately 70 other cases were heard that morning before the same Immigration Judge, who is currently under self-quarantine. That is only a fraction of the people who were present at court that day. Because of the volume of individuals who must appear at the Newark Immigration Court on any given day, the majority of individuals must wait together, sometimes for hours, in an extremely small waiting room, in which all attorneys, courts staff, interpreters, security guards and judges must also pass.

New Jersey Law Center • One Constitution Square • New Brunswick, NJ 0 8901-1520

732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • www.njsba.com

It was also learned that an attorney from the DHS Office of Chief Counsel, who was present in Court on March 13, has not only tested positive for COVID-19 but is currently in a medically induced coma in ICU fighting for his life. The entire staff of the Office of Chief Counsel, which is primarily located on the 13th Floor of the Rodino Building, has been placed under required quarantine for a period of two weeks.

As a result of this, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a directive on Twitter and Facebook stating that the Newark Immigration Court would be closed from March 18-April 10, 2020, and that all court filings would be considered timely filed on April 10, when the court reopened.

Last night, March 25, at 9:30 pm, EOIR announced via Twitter and Facebook that Newark Immigration Court would reopen starting TODAY, March 26. No further information was given to the public, or, notably, the Immigration Judges or the court staff. It has been clarified that the Newark Court has reopened for court filings only, because EOIR has now stated that any filings due during the previous days of closure would now be due on March 30, 2020.

Some members of the court staff are now required to be present to accept in-person filings at the court window, as well as to handle filings that have been mailed to the court. The Office of Chief Counsel remains closed under quarantine, and therefore cannot accept filings.

The reopening of the Newark Immigration Court, even for a limited purpose, is in clear violation of Executive Order 107. The functions of the Court at this time are non-essential, because the Court does not handle detained cases. Moreover, the reopening is putting Court staff in jeopardy of not only exposure to the virus themselves, but also of spreading it to others. The City of Newark is under a shelter-in-place restriction, and, this morning, the U.S District Court for the District of New Jersey just issued an order closing the Martin Luther King and Frank R. Lautenberg courthouses because several employees have confirmed positive COVID-19 tests. The courts are closed immediately and will remain closed through April 6, 2020.

It should be noted that the courthouses are located next door to the Rodino building, and the U.S. Attorney’s Office is in the Rodino Building. Staff, attorneys, and members of the public use the same parking facilities, elevators, and even cafeterias located in the buildings.

Therefore, for all of the above reasons, the Newark Immigration Court should be closed immediately and remain closed until its scheduled reopening date of April 10, at the earliest.

ELIZABETH IMMIGRATION COURT:

The Elizabeth Immigration Court is located at 625 Evans Street, Elizabeth, NJ, and is located in the same building as, and in close proximity to, ICE detainees. The Elizabeth Court handles detained cases and is currently open.

On March 13, 2020, a medical staff person who works in the detention center was presumed to have been exposed to COVID-19; this diagnosis was later confirmed. Moreover, because attorneys for the Office of Chief Counsel travel back and forth between the Elizabeth Immigration Court and the Detention Center, where there is an auxiliary OCC office, and the Rodino Building in Newark, the OCC in Elizabeth has been included in the mandatory, two-week quarantine. Numerous private and pro bono

attorneys also routinely appear in both courts, as do interpreters and ICE personnel.

One of the Elizabeth Immigration Judges has been out on leave; an Immigration Judge from Newark, whose husband had been quarantined but tested negative for the virus, is now handling the docket in Elizabeth.

Immigration attorneys are allowed to appear telephonically if they choose; court staff, judges, security guards, interpreters, and, of course, the detainees housed in Elizabeth are there in person. The Office of Chief Counsel is still under quarantine; their attorneys have been appearing telephonically.

On March 24, 2020, at 2:30 pm, EOIR announced, via Twitter and Facebook, that the Elizabeth Immigration Court was closing for the rest of the afternoon because they had received confirmation of “the presence of an individual with a test-confirmed Coronavirus diagnosis.”

The Elizabeth Immigration Court reopened the next day and remains open.

The Elizabeth Immigration Court hears cases for individuals who are housed at Elizabeth Detention Center, as well as at Essex and Hudson County Jails. The individuals housed at those jails are usually seen via tele video. However, a detainee and a senior staff person at Essex County Jail both have positive COVID-19 diagnoses and are experiencing serious symptoms. And ICE detainees at all three locations are engaging in hunger strikes because they are afraid of contracting the virus as well.

Moreover, on March 25, EOIR issued a requirement that all attorneys dealing with inmates in ICE detention centers and courts MUST bring their own personal protective equipment (PPE) in order to be allowed to enter the facilities. Therefore, either attorneys cannot adequately represent their clients, or they must obtain PPE at the expense of health care providers and first responders who desperately need this equipment.

The NJSBA recognizes that it is more difficult to close a court that handles detained cases, as that imposes a reduction of the individuals’ constitutional rights. However, the NJSBA believes that a short- term closure of two weeks, in order to ensure that anyone who has been exposed to COVID-19 does not spread the virus, even unwittingly, is extremely important to protect the health and safety of the individuals who are housed there, who work there, and who must report there, as well as the public at large.

The NJSBA would, at the same time, ask that the State confer with ICE regarding the release of any non-criminal or low-risk immigration detainees. This would further aid in slowing the spread of the virus, as well as protecting the individuals who work at the Elizabeth Immigration Court and Detention Center and would minimize significantly the numbers of detained cases on the court docket. Should ICE forbear from placing new detainees in custody within NJ facilities would also stem the spread of the virus to vulnerable inmate populations. Alternatives to detention, such as ankle-bracelets, or mandatory video or telephonic check-ins would help ensure that ICE’s mission is not curtailed.

It should be noted that the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA) and the American Federation of Government Employees #511 (AFGE/ICE Professionals Union) issued a joint statement on March 22, 2020, asking for the nationwide closure of all immigration courts across the country.

Immigration attorneys, immigration courts staff, and immigration prosecutors are literally having to

make life and death decisions every day because of EOIR’s callous disregard for the health and safety of its employees, immigrants, anyone who must come into contact with the courts, and the

public. Accordingly, NJSBA is asking you to close the NJ immigration courts immediately to preserve the health and safety of the residents of NJ.

Respectfully submitted,

Evelyn Padin, Esq. President

cc: Senator Robert Menendez Senator Cory Booker

Matthew Platkin, Esq., Counsel to the Governor

Susan Roy, Esq., Chair, NJSBA Immigration Law Section Angela C. Scheck, Executive Director

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

Thanks, Sue, for all you do!

To be honest, I’m not sure that a State Governor has authority to close down a Federal Office, even in times of emergency. But, this absurd, yet deadly, situation shows the arrogant disrespect for human life, common sense, and basic decency of Barr and his EOIR toadies.

Normally, you would expect cooperation, coordination, and support from the Feds in time of a health emergency. In the age of Trump and his kakistocracy, not so much. After all, you’re dealing with a regime headed by a maliciously incompetent dude who couldn’t wait to start undermining the best advice of his own doctors and nearly all health care professionals in the U.S. Bad things happen to a country that empowers a kakistocracy!

PWS

03-27-20

KILLER “COURTS” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻 — “Malicious Incompetence” Or “Criminal Negligence” @ EOIR? — Experts Chase & Dzubow Rip Into EOIR/DOJ Officials For Needlessly Endangering Lives! — Kakistocracy Turns Deadly!

https://www.jeffreyschase.com/blog/2020/3/26/like-firing-randomly-into-a-crowd

Hon. Jeffrey S. Chase in Jeffrey S. Chase Blog:

Like “Firing Randomly Into a Crowd”

On March 23, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a sua sponte order in a case pending before it, ordering the Petitioner’s immediate release from detention “in light of the rapidly escalating health crisis, which public health authorities predict will especially impact immigration detention centers.” In taking such action, the court used its authority to protect those under its jurisdiction.This is what judges and courts are supposed to do.

In contrast, the leadership of EOIR, the agency which oversees our nation’s immigration courts, sees its mission quite differently. With shocking indifference to those subject to its authority, including its own employees as well as members of the public, EOIR’s present leadership seeks only to please its Department of Justice masters, much like a dog rolling over or playing dead to earn a pat on the head from its owner.

As we all began to comprehend the seriousness of the coronavirus pandemic weeks ago, EOIR refused to close immigration courts out of fear of sending a message contrary to Trump’s statements that the health crisis was a “hoax.” Christopher Santoro, the coward holding the title of Acting Chief Immigration Judge, ordered court staff to remove CDC-issued advisories on ways to help stop the spread (i.e. by not shaking hands) on the grounds that the immigration judges lacked the authority to hang such notices in their own courtrooms. In defense of his stupidity, Santoro offered the age-old excuse of the weak: that he was only following orders.

As the virus spread, and people began dying, EOIR kept its courts open far longer than it should have. An ICE attorney who represented the government throughout a crowded Master Calendar hearing in Newark, NJ on March 13 is presently in a coma in intensive care with COVID-19 fighting for his life. I’ve heard that an immigration judge in one of NYC’s immigration courts is presently ill with COVID-19 and pneumonia.There have been additional reports of others at immigration detention centers testing positive.

As cities locked down and sheltered in place, EOIR finally agreed to postpone non-detained hearings, but only until April 10. Hearings in detained courts continue to go forward.And for some reason, non-detained courts that were closed and should have remained so were reopened for the filing of documents only, with such openings announced by nighttime tweets. On Wednesday night, EOIR tweeted that several courts would “open” the next morning, without explaining whether that meant hearings that had previously been announced as postponed would instead go forward the following morning.As this occurred after business hours, there was no one to call for clarification. In fact, the opening was only to file documents.EOIR’s leadership (for want of a better term) has decided that all court filings due during the court closings are now due on March 30.Many lawyers in NYC have no way to meet this deadline, as their office buildings have been locked in compliance with the state’s shutdown order.

In order to accept these filings, EOIR is forcing court clerical staff to leave the safety of their homes, disobey the state PAUSE directive and expose themselves and their family members to possible infection in order to report to work. In NYC, traveling to work for most employees requires riding trains and buses, further increasing the risk of exposure.As schools are closed, how those court staff with child care needs will manage in a time requiring social isolation is unknown.

Furthermore, not all judges hearing detained cases are granting continuances despite the crisis. EOIR has not informed judges that the present crisis exempts them from meeting their performance metrics, which requires all judges to complete 700 cases per year, and to finish 95 percent of cases on the day of their first-scheduled individual hearing. Newly hired judges, who are on probation for two years, are therefore being forced to choose between their own job security and the health and welfare of all those who appear in their courts.

In recent days, EOIR has been besieged with letters from health care professionals, law professors, and various legal and advocacy organizations containing strong arguments to do what the Ninth Circuit had done instinctively and without having to be asked. In one of these letters, attorney George Terezakis, writing on behalf of the New York-based Association of Deportation Defense Attorneys (on whose Board of Directors I sit), described how the mother of a detained respondent who traveled from her home in Long Island to the court in Lower Manhattan by commuter train and subway to file a document for her son’s hearing was later diagnosed with the coronavirus. Terezakis continued: “Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees’ family members will foreseeably and inevitably kill someone…keeping the courts open ensures continued, needless infection, serious illness and death…”The letter continued: “This is a real crisis requiring real leadership to take decisive action that will place the safety of those under its jurisdiction ahead of other concerns. There is no escaping the inevitable consequences of inaction.”

As for Santoro, “I was only following orders” has historically fared poorly as a defense. Someone whose name is preceded by the title “Chief Immigration Judge” is required to stand up and take appropriate action in a time of crisis, and accept the consequences of such action. And for those in EOIR’s leadership chain who refuse to do so, it is incumbent on all of us to do everything in our power to ensure that they will be held fully accountable for their inaction under the next administration.

Copyright 2020 by Jeffrey S. Chase. All rights reserved. Reprinted with permission.

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

https://www.asylumist.com/2020/03/26/incompetence-and-reckless-at-eoir-endanger-lives/

Jason Dzubow writes in The Asylumist:

The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

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

Thanks, Jeffrey, Jason, and Sue, my friends, for “telling it like it is!” Now is not the time for “go along to get along” bureaucratic responses.
Unfortunately, attorneys and court staff might now start paying with their lives for EOIR’s inexcusable two-decade failure to implement a functional e-filing system.
As one of my Round Table colleagues said, “Since when is a late night tweet ‘official notice?’” Don’t remember anything about “notice by tweet” in 8 CFR!
As I noted previously, J.R. and his tone-deaf, complicit Supremes effectively repealed the “Bivens doctrine,” holding Federal officials responsible for “Constitutional torts” committed outside the scope of their official duties. They thereby essentially gave rogue Federal officials a “license to kill,” at least where the victim was merely an unarmed Mexican teenager. It appears that Barr, McHenry, and others in the “chain of command” are trying out their new “licenses.” They had better hope that J.R. & Co’s “willful blindness” and unwillingness to stand up for lives and Constitutional rights extend even when American citizen lawyers and court clerks are among the casualties.
Not surprisingly, EOIR’s contempt for due process and the lives of asylum seekers, families, children, and other migrants has expanded to include the lives of their own employees and members of the public forced to deal with this godawful, unconstitutional mess.
When the reckoning comes, we should not forget the negligent complicity of Congress as well as the Article III Courts for allowing the life-threatening, dysfunctional, unconstitutional mess that EOIR has become continue to operate and to threaten the health, safety, and welfare of all Americans.

PWS

03-27-20

CLOSE ‘EM DOWN, ALREADY! — ROUND TABLE JOINS 70+ OTHER NGOs CALLING FOR IMMEDIATE CLOSURE OF ALL IMMIGRATION COURTS!

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Fanny Behar-Ostrow-Ostrow — Fanny Behar-Ostrow ESQ
Assistant Chief Counsel, DHS
President AFGE Local 511

From Dan Kowalski over @ LexisNexis Immigration Community:

More than 70 Organizations Call on DOJ to Immediately Close All Immigration Courts During the COVID-19 Pandemic

AILA Doc. No. 20032630 | Dated March 26, 2020 | File Size: 596 K

DOWNLOAD THE DOCUMENT

On March 26, 2020, more than 70 organizations joined AILA, the National Association of Immigration Judges (NAIJ), and the ICE Professionals Union, to call on the Department of Justice to immediately close all immigration courts during the COVID-19 pandemic.

Cite as AILA Doc. No. 20032630.

Related Resources

·         Resource Center: 2019 Novel Coronavirus (COVID-19)

·         Immigration Judges, Prosecutors, and Attorneys Call for the Nationwide Closure of All Immigration Courts

·         Press Call: Immigration Judges and Attorneys Joined by Public Health Experts Call for Additional Protective Measures Amid COVID-19 Outbreak

March 26, 2020

The Honorable William P. Barr Attorney General

U.S. Department of Justice

James McHenry

Director

Executive Office for Immigration Review

Submitted via email

RE: THE DOJ MUST IMMEDIATELY CLOSE ALL IMMIGRATION COURTS DURING THE COVID-19 PANDEMIC

Dear Attorney General Barr and Director McHenry,

Following previous calls by the National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (ICE Professionals Union), and the American Immigration Lawyers Association (AILA) for the temporary closure of all immigration courts, we, the undersigned international, national, state, and local immigration, civil rights, faith- based, government accountability, and labor organizations urge the U.S. Department of Justice (DOJ) to immediately close all 68 Immigration Courts operated by the Executive Office for Immigration Review (EOIR) in adherence with current public health protocols regarding the COVID-19 virus.

On the evening of March 17, EOIR postponed all non-detained hearings and recently postponed all of the Migrant Protection Protocol hearings (MPP) scheduled through April 22, 2020. However, more aggressive action is needed. While these policies are a step in the right direction, they fall far short of the required action called for by this pandemic emergency. The detained courts must also be closed to in-person hearings in order to minimize the spread of the virus, slow the rate of new infections, and to avoid overwhelming local resources.

Given the particular vulnerability of respondents in detained settings, the use of telework, which has been advocated by the Administration, can and should be quickly put in place. Immigration Judges stand ready and able to work to ensure priority matters, including detained bond matters, are addressed using technological tools. DOJ should permit all detained respondents to immediately receive telephonic bond redetermination hearings with teleworking judges and allow supporting documents to be faxed and emailed to a designated point of contact. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.

The urgency for immediate, decisive action in this matter cannot be overstated. Every link in the chain that brings individuals to the court – from the use of public transportation, to security lines, crowded elevators, cramped cubicle spaces of court staff, packed waiting room facilities in the courthouses, and inadequate sanitizing resources at the courts – place lives at risk.

AILA Doc. No. 20032630. (Posted 3/26/20)

Every state and the District of Columbia have declared a state of emergency giving government leaders the opportunity to implement bold and unprecedented measures to slow and eventually

eliminate the spread of the virus. Some officials are releasing prisoners, allowing them to shelter in place at home. Cities, county, and state governments have moved swiftly to implement stay at home orders to ensure the protection of community members from this highly communicable virus. These measures include the scaling back of mass transit conveyances to most urban centers where the immigration courts are located, creating significant logistical problems for anyone needing to access the courts. On March 21, the Department of Homeland Security (DHS) announced that it

will now require all legal visitors to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) in order to enter any

detention facility, despite the nationwide shortage of PPE.

Yet EOIR continues to operate courts in a business-as-usual manner, placing court personnel,

litigants, and all community members in harm’s way. To make matters worse, DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion

and leading to litigants showing up at hearings that are cancelled without notice.

DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts. DOJ must immediately implement the temporary closure all immigration courts. Failing to take this action now will exacerbate a once-in-a-century public health crisis and lead to a greater loss

of life.

If you have any questions, please do not hesitate to contact Laura Lynch, Senior Policy Counsel, AILA (llynch@aila.org), Judge Ashley Tabaddor, President, NAIJ (ashleytabaddor@gmail.com), or Fanny Behar-Ostrow, President, AFGE Local 511 (fbehar1@gmail.com).

Sincerely,

Fanny Behar-Ostrow ESQ
Assistant Chief Counsel, DHS
President AFGE Local 511

Advocates for Basic Legal Equality, Inc.

America’s Voice

American Federation of Government Employees (AFGE) Local 511 American Immigration Council

American Immigration Lawyers Association (AILA)

Americans for Immigrant Justice, Inc.

Amnesty International USA

Arizona Coalition to End Sexual and Domestic Violence

Asian Pacific American Labor Alliance, AFL-CIO

Asian Pacific Institute on Gender-Based Violence

ASISTA

Association of Deportation Defense Attorneys, Inc.

Ayuda

Capital Area Immigrants’ Rights (CAIR) Coalition

Catholic Legal Immigration Network, Inc.

Center for Gender & Refugee Studies

   AILA Doc. No. 20032630. (Posted 3/26/20)

Center for Victims of Torture

Central American Resource Center

Coalition for Humane Immigrant Rights (CHIRLA)

Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces End Domestic Abuse Wisconsin

Evangelical Lutheran Church in America

Federal Bar Association Immigration Law Section

*Disclaimer, this is the position of the Immigration Law Section and not the Federal Bar Association as a

whole.

Freedom Network USA

Government Accountability Project

Her Justice

HIAS

Human Rights First

Human Rights Initiative of North Texas

Illinois Coalition Against Domestic Violence

Immigrant Families Together

Immigration Equality

International Federation of Professional and Technical Engineers International Rescue Committee

InterReligious Task Force on Central America

Just Neighbors

Justice for Our Neighbors-Michigan

Las America’s Immigrant Advocacy Center

Latin America Working Group

Leadership Conference of Women Religious

League of United Latin American Citizens

Legal Aid Justice Center

Montana Coalition Against Domestic and Sexual Violence National Advocacy Center of the Sisters of the Good Shepherd National Association of Immigration Judges

National Council of Jewish Women

National Justice for Our Neighbors

National Latina Institute for Reproductive Justice

Nebraska Coalition to End Sexual and Domestic Violence Neighbors Immigration Clinic

NETWORK Lobby for Catholic Social Justice

New York Immigration Coalition

New York Justice for Our Neighbors

Northern Illinois Justice for Our Neighbors

Ohio Immigrant Alliance

Pax Christi USA

Restoration Immigration Legal Aid

Rian Immigrant Center

Round Table of Former Immigration Judges

Santa Fe Dreamers Project

Sisters of Mercy of the Americas Justice Team

AILA Doc. No. 20032630. (Posted 3/26/20)

South Texas Human Rights Center

Tennessee Justice for Our Neighbors

The Florence Immigrant & Refugee Rights Project

The Leadership Conference on Civil and Human Rights

Ujima Inc: The National Center on Violence Against Women in the Black Community Vermont Network Against Domestic and Sexual Violence

Virginia Coalition for Immigrant Rights

Virginia Coalition of Latino Organizations

Virginia Interfaith Center for Public Policy

Washington Office on Latin America

Washington State Coalition Against Domestic Violence

Wellspring United Church of Christ

Young Center for Immigrant Children’s Rights

AILA Doc. No. 20032630. (Posted 3/26/20)

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

Pretty disturbingly graphic example of how little EOIR & the DOJ care about the health, safety, and welfare of their own employees, let alone the public they have long ceased serving!

Also appreciate the courageous leadership of AFGE Local 511 President and DHS Assistant Chief Counsel Fanny Behar-Ostrow in joining the effort to end the regime’s reckless insanity. An “Honorary Member” of the NDPA to be sure! Folks like Fanny, Ashley, Laura, Jeff, and Dan are among America’s unsung heroes! Thanks for all you do!

Due Process Forever! Political “Courts” Endangering Public Welfare & Safety, Never!

PWS

03-26-20

NDPA HEROES CONTINUE TO FIGHT FOR LIVES OF MOST VULNERABLE DURING TIME OF CRISIS! — New Filing Seeks Release Of “Sitting Ducks” From The DHS Gulag !

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

Laura Lichter ESQUIRE — Laura Lichter
Lichter Immigration
Denver, CO
Past President, AILA

Hi all –

We filed an emergency motion about COVID-19 last night. It is system-wide, although filed in CD California, and includes evidence from Aurora thanks to Laura Lichter’s brave client.

The pleading is here: https://www.splcenter.org/sites/default/files/fraihat_v._ice_pls_memo_iso_emergency_pi.pdf

And I attach three medical expert declarations. Please use them however you’d like.

Thanks

Liz.

Elizabeth Jordan*

(she/her/ella)

Director, Immigration Detention Accountability Project (IDAP)

Civil Rights Education and Enforcement Center (CREEC)

*Not admitted in Colorado; practice limited to federal and immigration courts.

Declaration of Dr. Homer Venters

Franco-Paredes declaration

Meyer declaration

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

Every life saved is important. Thanks to Liz, Laura, and all the other “NDPA Heroes” involved in this effort.

DUE PROCESS FOREVER! THE NEW AMERICAN GULAG (NAG) NEVER! HATS OFF THE ELIZABETH, HER AMAZING TEAM, LAURA, & THE MANY OTHER HEROES OF THE NDPA!

PWS

03-26-20

GOOD NEWS IN THE TIME OF THE PLAGUE: 10th Cir. Overrules BIA, Finds Defective Notice To Appear Can’t Later Be “Cured” To Invoke The “Stop Time” Rule For Cancellation of Removal! –Banuelos-Galviz v. Barr

Banuelos-Galviz v. Barr

Banuelos-Galviz v. Barr, 10^th Cir. , 03-25-20, published

PANEL: HOLMES, MATHESON, and BACHARACH, Circuit Judges.

OPINION BY: Judge Bacharach

KEY QUOTE:

Given the unambiguous language of the pertinent statutes, the stop- time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing. We thus grant the petition for review and remand to the Board for further proceedings.

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

“No ‘Chevron deference’ for you, BIA!” Particularly, where you ignore the clear statutory language as well as the Supreme’s ruling in Pereira. The precedent overruled by the 10^th Circuit is Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc), a rare (these days) en banc ruling that generated a feisty and correct dissent (also rare following the “Ashcroft purge of ‘03”). But, because of the arcane rules governing the BIA, the overruled precedent in Mendoza-Hernandez will continue to apply everywhere except the 3^rd & 10th Circuits.

Not Rocket Science: Notwithstanding the BIA’s “smokescreens,” and that the Fifth and Sixth Circuits have managed to get it wrong, this is a very straightforward reading of the statute that any first-year law student should get right on an exam. We now have three Circuits that have gotten it right, the 3^rd, 10^th, and 9^th, and two that have bobbled it. But, as noted by the 10^th Circuit, the 9^th Circuit opinion has been vacated pending rehearing en banc. Lopez v. Barr, 925 F.3d 396, 410 (Callahan, J., dissenting), reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.).

More “ADR” on the horizon: In any event, the DHS’s choice to serve clearly defective notices combined with the BIA’s “straining to get to deportation” to satisfy their political handlers in the DOJ is continuing to create an awful mess in the Immigration Courts. That, in turn, should continue to “artificially jack up the backlog” and create even more “Aimless Docket Reshuffling” (“ADR”) until it’s finally resolved.

PWS

03-25-20

THE TRUTH IS OUT: Human Life & Public Safety Aren’t “Priorities” In Weaponized Immigration “Courts” – Judges & Court Staff Turning Out To Be Just As “Dispensable” As Migrants, Attorneys, & The Public Welfare!

https://apple.news/A5yFRyomETnyiKYwwb6QR8g

Liz Robbins reports for The Appeal:

Federal immigration courts that handle cases of detained immigrants are still open, despite a growing number of states and cities issuing “stay at home” mandates to combat COVID-19. On Sunday night, the organizations representing immigration judges, prosecutors, and defense lawyers jointly demanded—for the second time in a week—that the courts be closed.

Meanwhile, detained immigrants are staging hunger strikes at three New Jersey jails to protest the lack of sanitary conditions they fear could lead to outbreaks. Their protests come after confirmation of positive tests from two staff members connected with two other jails in the state that house immigrants.

The pipeline to feed those jails remains open. Although immigration enforcement officers have scaled back operations, they say they will continue to focus their enforcement on “public safety risks” and people subject to “mandatory detention on criminal grounds.”

“Their recklessness towards immigrant community well-being and immigrant lives is particularly disturbing—and even more dangerous in this moment because a virus doesn’t ask you for your legal status before it decides what to do,” said Camille Mackler, a New York immigration lawyer who is a fellow with the Truman National Security Project, a left-leaning think tank for national security issues. “This could get everyone sick.”

The Trump administration’s hardline immigration policies are intersecting with a highly contagious disease at a time when New York State leads the nation with at least 20,875 confirmed coronavirus cases. In New York on Friday, Attorney General Letitia James joined Bitta Mostofi, New York City’s commissioner of Immigrant Affairs, in calling for a shutdown of all immigration courts. They agreed with the judge’s union and lawyer organizations in urging for bond to be filed electronically.

The Legal Aid Society and the Bronx Defenders—two New York legal providers—sued in federal court on Friday to have clients who are susceptible to coronavirus released from ICE detention, including those with diabetes, heart disease, neurocognitive disorder, kidney disease, and lung and liver problems.

Officials with ICE said on Monday that there had been no detainees with confirmed cases of coronavirus of individuals in the agency’s custody. They said that they were testing detainees according to guidelines from the Centers for Disease Control and Prevention, but would not say how many. In a statement, a spokesperson said: “The health, welfare and safety” of ICE detainees “is one of the agency’s highest priorities.”

. . . .

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

Read the rest of Liz’s report at the link.

And, here’s the full text of the letter from NY AG Letitia James:

VIA EMAIL

The Honorable William Barr Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, D.C. 20530

Administrative Chief Immigration Judge Kevin Mart, Acting Court Administrator Paul Friedman
Varick Immigration Court
201 Varick Street, 11th Floor

New York, NY 10014

Assistant Chief Immigration Judge Philip J. Montante, Jr. Batavia Immigration Court
4250 Federal Drive, Room F108
Batavia, NY 14020

(212) 416-8050

STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL 28 LIBERTY ST.
NEW YORK, NY 10005

March 20, 2020

Assistant Chief Immigration Judge Carrie C. Johnson-Papillo Ulster Immigration Court
750 Berme Road, PO Box 800
Napanoch, NY 12458

Re: New York Immigration Court Operations During COVID-19 Outbreak

Dear Attorney General Barr, Honorable Judges, and Mr. Friedman:

I write to support efforts to protect practitioners, staff, and the public at New York State immigration courts amid the expanding COVID-19 outbreak. Organizations that provide free legal representation to indigent non-citizens at these courts, including those that make up the New York Immigrant Family Unity Project (NYIFUP), Prisoners’ Legal Services of New York, and the ECBA Volunteer Lawyers Project, have reported that some of its members have COVID-19 symptoms or have been exposed to an individual with COVID-19. These organizations requested measures to reduce the risk of exposure to the virus, and while EOIR has

taken some steps to reduce hearings and court traffic for non-detained cases, current policies still require extensive in-person interaction in cases involving detained individuals.

During this national public health emergency, it is incumbent upon us all to mitigate the spread of this novel virus. Court administrations at the state and federal level have instituted protocols that allow court business to continue but also safeguard the public health, including closing non-essential parts of the court and adjourning new trials. A similar approach is appropriate and warranted in immigration courts.

I therefore ask that you at a minimum adopt the proposals put forth by NYIFUP providers at all immigration courts in New York State. These proposals include adjourning master calendar hearings, presumptively permitting telephonic appearances for bond and individual hearings, and presumptively permitting extensions and continuance requests. Especially in courts where respondents appear in person and where witnesses must travel from out of town, these measures are necessary to minimize human contact. I also request that you institute a means for practitioners to submit these motions electronically. Currently, practitioners are required to submit these motions in person at the court or through the mail via post offices. Requiring these in-person or by mail submissions not only causes delays in submitting these important requests, it also unnecessarily jeopardizes the health of those involved.

These are unprecedented times. It is imperative that all agencies adjust policies and practices to protect the health and welfare of our community. I implore you to take these critical steps here.

Sincerely,

Letitia James
New York State Attorney General

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

Don’t expect much to happen until folks start dropping and dying. By then, it will be too late! But, perhaps that’s just “business as usual” in a system that has made rationality and concern for humanity non-factors. And, to date, there has been no accountability, by Congress or the Article IIIs for any of the outrageous, life-threatening, scofflaw, unconstitutional actions of the Trump regime in the immigration area. Indeed, the Supremes and other U.S. appellate courts have actually “rubber stamped” their “seal of judicial approval” one some of the most outrageous conduct employed by Miller and the White Nationalist cabal.

While the lives and human dignity of migrants has been of little visible concern to the Congress, the Supremes, and many Circuit Courts of Appeals (that’s actually what the regime’s program of “Dred Scottifying” and “maximum dehumanization” aims to achieve) perhaps the illness and even death of judges, lawyers, and court personnel will finally get the attention of the “exalted ones” in their rarified, risk-free air. On the other hand, the Senate GOP doesn’t seem to have “gotten the message” even as their own colleagues start to drop.

PWS

03-23-20

WASHPPOST: HOW TRUMP’S JUDICIALLY-ENBABLED WHITE NATIONALIST IMMIGRATION POLICIES HAVE PUT AMERICA AT RISK!

https://www.washingtonpost.com/opinions/trumps-immigration-policies-have-already-put-lives-at-risk/2020/03/22/54593c3a-6a1c-11ea-9923-57073adce27c_story.html

From the WashPost Editorial Board:

IN EARLY March, U.S. Immigration and Customs Enforcement seemed to have not yet gotten the memo that a deadly virus was threatening the country. The deportation agency was mustering hundreds of additional special agents, normally busy with long-term investigations, to surge into so-called sanctuary cities and round up undocumented immigrants by the thousands. Operation Palladium, as it was called — Operation Pandemonium would have been more apt — was already terrifying migrants and forcing them deeper into the shadows. That was exactly the wrong thing to do as a deepening public health crisis gripped society.

Better late than never, the Trump administration has now backed off its ramped-up immigration crackdown. It remains unclear how many lives — of immigrants and native-born Americans alike — will have been risked in the meantime as a result of the administration’s scare tactics.

[[More coverage of the coronavirus pandemic]]

Those tactics have been embedded not only in sweeps through major cities but also in policy. The so-called public charge rule, imposed last year by the administration, discourages legal immigrants from seeking care at public hospitals and clinics, lest they be deemed a burden on society and, as a result, denied legal permanent residence when they apply for green cards. That was true even before anyone had heard the words novel coronavirus or covid-19.

Similarly, many undocumented immigrants have been equally reluctant to seek health care, fearing that ICE agents will grab them when they do. The agency said it didn’t generally stake out medical facilities, but it didn’t forbid it either.

The anxieties and behaviors arising from those policies are baked into immigrant communities. Now the administration, mindful that they are antithetical to fighting a pandemic, is trying to unbake them.

Last Wednesday, ICE announced it would limit enforcement operations to detaining unauthorized migrants who are actual criminals or threats to society. U.S. Citizenship and Immigration Services, which handles green card applications for legal permanent residence, said last week that applicants might not be rejected on the basis of having sought free medical attention arising from the coronavirus crisis, if they could “provide an explanation and relevant supporting documentation.”

Will those announcements, buried in the avalanche of pandemic news and the fine print of government regulations, be too late to change migrants’ habits? Having scared the wits out of legal and undocumented immigrants for the past three years, can the administration now un-scare them — at least enough to seek medical care if they need it?

[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]

Those are pressing questions because immigrant and native-born communities are closely integrated in this country, even if the Trump administration has been loath to acknowledge it. As a public health matter, it is disastrous to erect policy barriers to impede any community’s access to care, because contagious diseases make no such distinctions. That is precisely what the administration has done.

It has long been President Trump’s contention that immigrants are vectors for disease. Until now, there has been little evidence for that. In the current circumstances, it may become a self-fulfilling prophecy if migrants, frightened by the administration’s relentlessly hostile policies, fail to seek the medical attention they need just as critically as their U.S.-born neighbors, colleagues and relatives.

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

The regime couldn’t have pulled off this disaster without the help and support of J.R. & his Supremes. Time after time, they have ignored overwhelming evidence of White Nationalist bias and intentional factual misrepresentations driving so-called “policies,” looked the other way as the regime abused the concepts of “national security” and “emergency” as a pretext for invidious actions, abandoned their duty to our Constitution, mocked the rule of law, and shown a deep and abiding disrespect for human values and human decency.

And, make no mistake about it, the real targets of the regime’s judicially enabled “Dred Scottification” are American communities of color, regardless of citizenship. The horrible, intentionally “tone deaf” performance of the “Roberts’ Court” in the face of the regime’s unbridled racism and tyranny has truly brought us to one of the lowest points in American history.

Due Process Forever! Complicit Judges Never!

PWS

03-23-20

NEW SUIT SEEKS TO SPRING FAMILIES FROM GULAG BEFORE IT’S TOO LATE!

https://apple.news/AuCl6K46oTsicLY15k0EYgw

Josh Gerstein reports for Politico:

A new lawsuit argues that immigrant families being held under the Trump administration’s family detention policy should be released immediately because they are at grave risk of contracting the coronavirus due to conditions in those facilities.

Lawyers filed suit in federal court in Washington on Saturday on behalf of more than three dozen families held at a trio of detention centers in Texas and Pennsylvania.

Advocates say the communal housing arrangements, limited cleaning supplies and the regular influx of new families make the centers a potential hotbed for Covid-19 infection and defy guidelines from the Centers for Disease Control discouraging any gathering of more than 10 people.

“Detained mothers, fathers and children are forced to live and sleep in close quarters and required to congregate and as a result, cannot achieve the ‘social distancing’ needed to effectively prevent the spread of COVID-19,” according to the suit, filed by immigration lawyers in New York, Pennsylvania and Texas. “Even in their beds they cannot even sleep or receive the required distance necessary to protect themselves.”

The suit says cleaning in the so-called Family Residential Centers is inconsistent because it is typically done by detainees who are paid $1 a day for that work. Hand sanitizer and masks are not typically available to the immigrants, and gloves are provided only for certain purposes, the complaint alleges.

“It is almost certain to expect COVID-19 to infect and spread rapidly in family residential centers, especially when people cannot engage in proper hygiene or isolate themselves from infected or asymptomatic residents or staff,” the suit contends.

. . . .

However, immigration lawyers also objected on Sunday after ICE said attorneys wishing to consult immigration detainees in person would now be required to “wear disposable vinyl gloves, N-95 or surgical masks, and eye protection.” Beginning Monday, attorneys need to “provide” those items themselves, new ICE guidelines say, despite the fact they are in short supply.

“.@ICEgov requiring attorneys to supply their own personal protective equipment to serve detained clients, when medical providers say THEY don’t have enough, is appalling and #unconstitutional,” immigration lawyer Allen Orr Jr. wrote on Twitter.

. . . .

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

Read Josh’s full article at the link.

This is like a continuing performance of the “Theater of the Absurd.” Except, real lives and the health of our nation are at stake here. Shut down the unconstitutional, inhuman, and dangerous to our national health DHS Gulag now!

Due Process Forever! The New American Gulag Never!

IDEA: Dems should insist that closing the Gulag for all but the very few demonstrably dangerous individuals (who should be detained by the Bureau of Prisions, not DHS or a private contractor) be part of the multi-trillion dollar stimulus package! The money and personnel could be “repurposed” to FEMA.

PWS

03-23-20

CLEAR AS MUD: Politicized Immigration “Courts” Continue To Bobble The Message In The Time Of Plague, Endangering Their Own Employees, Attorneys, & The Public! — America’s Clown Courts 🤡☠️ Enter A Deadly New Phase As Feckless Article III Courts Watch The Show Go On! —“I don’t know who’s making the calls, but they’re wrong.” — DUH!

https://apple.news/Af7cWvYFbT5CO7qZKyldm3w

Dara Lind reports for Pro Publica:

Interviews with 10 workers at immigration courts around the country reveal fear, contradictory messages and continuing perils for the employees.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

On Tuesday night — over a day after several Bay Area counties issued shelter-in-place orders barring most people from leaving their homes — the San Francisco immigration court sent an email to staff: Hearings were being postponed nationwide for most immigrants, so the court would be closed starting Wednesday. (The text of the email was provided to ProPublica.)

On Wednesday, however, employees were directed to get onto a conference call, according to two participants. There they were told the Tuesday night email was wrong. The court wasn’t closed. They would have to come into the office — or use their vacation time to stay home. When staff asked about the shelter-in-place orders, the response was that the Department of Justice, which runs immigration courts, took the position that those were local laws and didn’t apply to federal employees.

The Trump administration has reduced immigration court operations in the past week, by postponing hearings for non-detained immigrants and closing a handful of courts to the public. Those actions came after the unions representing immigration prosecutors and judges issued a rare public call for courts to close.

The reduced court operations came after weeks of employees raising concerns privately and, they say, receiving few and unhelpful answers. And because the closures are determined solely by whether a court is hearing cases of detained immigrants, rather than by the level of health peril, employees still feel they’re putting their health at risk every time they come into the office as instructed.

That’s the picture that emerges from interviews with 10 federal employees who work at immigration courts across the country. Most spoke on the condition of anonymity. Many said they had raised concerns internally about their exposure to COVID-19 to their managers or hadn’t been informed of potential exposures.

“When I signed up for this job, I thought it might be morally compromising at times,” one immigration court employee told ProPublica, “but I never thought it would be compromising of my health and safety.”

The Executive Office for Immigration Review, the DOJ agency that oversees immigration courts, told ProPublica that agency headquarters was responsible for deciding when courts closed, but it did not confirm or deny specifics of the employees’ allegations, saying, “We do not comment on internal communications or internal personnel operations.”

In Denver, one prosecutor interviewed by ProPublica was alarmed by a judge’s frequent coughs during a hearing last Friday. “Don’t mind my coughing,” the judge said, according to the prosecutor. “I don’t think it’s coronavirus.” The following Tuesday, the prosecutor noticed that the judge was out for the rest of the week and emailed a court staffer in concern: Was it the coronavirus? Should she be taking precautions? The staffer’s reply: For privacy reasons, the prosecutor’s questions couldn’t be answered.

Only after news broke to the public on Tuesday night that a judge at the Denver immigration court had been diagnosed with COVID-19 (the disease caused by the new coronavirus) did court officials follow up with the prosecutor and confirm her suspicions. Other attorneys the judge had been in close contact with were notified the next day. The court remained open through Thursday, when the entire building it was housed in was shut down for deep cleaning by the General Services Administration. (It’s currently set to reopen Monday.)

In New York, legal aid groups sent a letter to immigration court officials saying that two of their attorneys had symptoms of COVID-19 and a third had been exposed to someone who’d tested positive. All three attorneys had appeared in court the past week, and all had hearings scheduled the following day. The courts didn’t say anything to their employees about the letter, according to multiple sources.

Since taking office, the Trump administration has pressured the immigration courts to process as many immigrants as quickly as possible — pressuring judges to hear more cases and complete them within a year, and making it harder for immigrants or attorneys to postpone hearings. Now, they face a public health crisis that requires everyone to reduce person-to-person contact.

Immigration court workers have two concerns. The first is that the courts are often crowded and require close contact with members of the public. The second is that, like most employees of any type, especially those who take public transit, they are exposed every time they leave their homes to work.

Employees remain concerned about their exposure over the past few weeks, while courts were running as usual. Employees in New York and California — the states hardest hit by the pandemic to date — told ProPublica that their requests for “deep cleaning” were rejected by managers, and that they were bringing their own Clorox wipes and disinfectant spray to the office.

Most immigration court business happens in person. Even trying to postpone an immigration hearing (for example, due to illness) requires an attorney to file a paper form with a clerk. And if an immigrant doesn’t show up for a hearing, they’re at risk of getting ordered deported in absentia. In at least one New York court, according to two people who work there, the chief judge told employees Monday to issue absentia deportation orders if immigrants weren’t showing up, even if the coronavirus was the suspected cause.

Policies the Trump administration introduced before the COVID-19 pandemic put considerable pressure on judges and prosecutors not to allow immigrants to postpone their hearings. Judges face a “performance standard” of completing 80% of their cases within a year — a standard over 90% of judges don’t meet, according to the National Association of Immigration Judges. But the more than 150 judges who have been hired in the past two years are still in their probationary period, where they could be fired for failing to meet performance standards.

While many judges have been lenient in granting coronavirus-related postponements, others have not. Last week, according to one California immigration court employee, a judge took a break from a hearing to tell colleagues that the immigrant’s attorney claimed to be sick, but because he wasn’t coughing, the hearing would move forward.

One email sent by the chief prosecutor at the Miami court Tuesday, read to ProPublica, told prosecutors that if an immigrant or her attorney claimed to be sick, any postponement should be counted against the immigrant (preventing them from requesting another postponement). If the immigrant didn’t want to postpone, and the judge wasn’t willing to hold the hearing by phone, the prosecutor was instructed to contact her manager — who would assess the claim of illness himself before deciding what to do. (A call to the chief prosecutor in Miami was not immediately returned.)

Most communication, though, has been oral. In at least two courts, chief judges were asked to put policies in writing and declined.

Employees have been in the dark about who, exactly, is making the decisions about which courts are open and when employees are allowed to work from home or take leave to stay home. “The word is that it’s out of their hands. Everything is out of everybody’s hands,” Fanny Behar-Ostrow, president of the union representing immigration prosecutors, told ProPublica Wednesday. “I don’t know who’s making the calls, but they’re wrong.”

An email obtained by the Miami Herald, written by the assistant chief immigration judge in charge of the Miami immigration court on Wednesday, said that closure decisions were ultimately being made by “the White House” — something that employees at other courts also said their managers had suggested. But chief judges gave conflicting explanations about which decisions were subject to White House approval; one chief judge told employees that the White House had to be involved in decisions about remote work, while other chief judges made those decisions themselves.

It’s not clear who at the White House is involved or how. Immigration officials told the Herald that the ultimate decision was made by the Office of Management and Budget. However, according to the employees ProPublica spoke to, some immigration court officials used “White House” to refer to policies set by the Office of Personnel Management. The assistant chief immigration judge (the judge in charge of a given immigration court location) for one California court told employees on March 12 that they’d had a phone call with staff for Vice President Mike Pence, who’s running the official coronavirus task force.

But to many employees, the specter of “White House” involvement raised concerns that the administration’s immigration policy priorities were getting in the way of its public health obligations.

. . . .

Read Dara’s full article at the link.

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

The confusion engendered by politicized immigration enforcement in support of a White Nationalist agenda doesn’t end with the Immigration Courts. Despite, or perhaps because of, a number of public statements by DHS political hacks, there’s still plenty of uncertainty and angst about DHS’s enforcement and detention policies. Chloe Hadavas over at Slate sets out what happens when politicos take over law enforcement and justice.

Chloe Havadas — Chloe Hadavas
Intern Reporter
Slate

https://slate.com/news-and-politics/2020/03/ice-halts-immigration-enforcement-coronavirus.html

Immigration and Customs Enforcement announced on Wednesday that it will halt most arrests and deportations, focusing only on individuals who are “public safety risks” and who are “subject to mandatory detention based on criminal grounds,” as the coronavirus sweeps across the U.S. and public health officials scramble to limit the virus’ spread.

Undocumented immigrants are often afraid to seek medical care for fear of deportation. And even as state and local officials encouraged anyone who needed medical treatment to seek help, ICE officers continued to make arrests, including in areas hit hard by the virus. But in the temporary change in enforcement, ICE also said that it won’t carry out operations near health care facilities, including hospitals, doctors’ offices, and urgent care facilities, “except in the most extraordinary of circumstances,” the agency said in a statement. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”

Immigration experts said ICE’s decision was somewhat unexpected, though they remain cautious about how to interpret it. “I’m always surprised to hear that they’re going to scale back on their efforts,” said Jennifer M. Chacón, a UCLA law professor who focuses on immigration. ICE’s statement marks a distinct shift from the agency’s operations under the Trump administration. Both Chacón and Karla McKanders, a law professor who directs the Immigration Practice Clinic at Vanderbilt University, said that it reminded them of the “felons, not families” immigration policy of the Obama administration. “You read it and it basically looks like the Obama-era enforcement priority statement, and you just wonder why it takes a pandemic to get ICE to think about prioritizing resources and focusing efforts on public safety,” said Chacón.

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

You can read the rest of Chloe’s article at the link.

“I don’t know who’s making the calls, but they’re wrong.” Kind of “says it all” about how the regime treats its own employees and the public good.

Meanwhile, Article III Courts, which have had more than ample opportunity to put an end to the constitutional farce taking place in Immigration Court and also to direct the DHS to take overdue steps to release non-dangerous (that is, most) immigration detainees before the epidemic sweeps chronically health-endangering immigration prisons in their New American Gulag (“NAG”), have once again “swallowed the whistle.” The Gulag, where kids are caged and put in “iceboxes,” families separated, and folks sometimes left to die, all for no reason other than “we can do it and nobody’s going to stop us” will haunt not only those corrupt public servants who established and operated it, but also those like legislators, judges, and public health officials who failed in their duties to end the human rights abuses.

Perhaps the Article IIIs are “running scared” because without the ongoing clown show in the U.S. Immigration Courts, the Article IIIs would be in line for the title of “Americas’s Most Dysfunctional Courts.”

Also, I think it’s time for Slate to take “Intern” off Chloe Hadavas’s title and ink this “up and coming talent” to a full time contract covering immigration and justice issues.

Due Process Forever. Dysfunctional Courts That Endanger The Public, Never!

🤡☠️

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

PWS

03-21-20

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

UPDATE: Gullible, complicit U.S. Judges in their ivory tower bubbles with plenty of hand sanitizers might be willing to believe DHS’s claims that everything is “hunky dory” in the New American Gulag, but the truth is stark, ugly, and predictable for anyone familiar with the regime’s immigration antics, lies, and cover-ups:

“The cells stink. The toilets don’t flush. There’s never enough soap. They give out soap once a week. One bar of soap a week. How does that make any sense?”

Read the latest from Vice News, as hunger strikes break out in three New Jersey detention facilities:

https://www.vice.com/en_us/article/pkew79/immigrants-are-now-on-hunger-strike-in-3-ice-detention-centers–fears

Meanwhile, Courtside has been receiving reports from multiple sources in New Jersey about rapidly deteriorating conditions in Immigration Courts and the Gulag, failure to follow Federal health guidelines, possible positive coronavirus tests among ICE employees, and efforts by the the regime to keep the truth about about the growing health risks for detainees, judges, lawyers, and other personnel forced to deal with this dangerous, broken, and totally dysfunctional system “under wraps.”

I have also received disturbing, yet credible, reports of continuances for “at risk” attorneys being denied by some Immigration Judges, while other judges have received “no assurances” from their management “handlers” that the regime’s due-process-mocking “production quotas” will be waived during the health emergency! ☠️☠️☠️☠️☠️

PWS

03-21-20

SORRY, FOLKS, IT AIN’T YOUR DADDY’S ARLINGTON IMMIGRATION COURT ANY MORE: Under The Thumb Of The Trump Regime, Asylum Denial Rate Goes From 29.4% To 51.7%, Even As Worldwide Conditions For Refugees Continue To Deteriorate! — Think This Is “Using Best Practices To Guarantee Fairness & Due Process For All?” Guess Again!

“Courtside” recently received this from an “inherently reliable source:”

Click here to get the latest “asylum denial rates” for Arlington:

ArlingtonCourtasylumdenialrate

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

Before Trump, Arlington was a “model court” where Immigration Judges, with the help of the ICE Chief Counsel and the private bar, developed “best practices” and asylum seekers got a fair shake. In just a few short years under the Trump regime, it has moved steadily in the other direction toward the type of “denial factory” that the Trump regime wants to be the model for all Immigration Courts. Of course, Arlington isn’t close to the 100% denial rate that the regime wants and that is close to realization in some other courts. But, the deterioration of due process and fairness in Arlington is still disheartening.

We should always remember that the unconstitutional “weaponization” of the Immigration Courts is continuing to happen right under the noses of a feckless Congress and Article III Judges who should long ago have ended this abomination. Everyone responsible for this life-threatening mess will have much to answer for in the “Court of History.”

In the meantime, congratulations and appreciation to those judges who keep interpreting and applying asylum law in the generous way dictated by Cardoza-Fonseca and Mogharrabi. You are heroes in an age that where all too many show cowardice and a willingness to “go along too get along” in the face of great tyranny!

Due Process Forever! Judges Who Won’t Stand Up For Asylum Seekers, Never!

PWS

03-19-20

KAKISTOCRACY’S COSTS: Trump’s Obsession With Immigration Enforcement @ DHS Strips Competent Leadership, Kneecaps Ability To Protect National Security, Endangers Employees & Public!

Two items. First, Shannon Pettypiece @ NBC News:

Shannon Petteypiece — Shannon Pettypiece
Senior White House Correspondent
NBC News Digital

https://www.nbcnews.com/politics/white-house/dhs-faces-coronavirus-scores-vacancies-leadership-vacuum-n1160946

WASHINGTON — As President Donald Trump imposes sweeping entry restrictions in a bid to stop the spread of the coronavirus — and considers still more — he’s relying on an agency to help implement them that has been hollowed out at the top ranks in a revolving door of leadership, potentially hampering his administration’s response to the crisis.

It has been nearly a year since the Department of Homeland Security has had a Senate-confirmed leader. Acting Homeland Security Secretary Chad Wolf, the fourth person to lead the agency in three years, has been on the job less than six months.

In addition, 65 percent of top jobs in the department are vacant or filled by acting appointees, more than in any other federal agency, according to the Partnership for Public Service, a nonprofit group that advocates for more effective government. Among the vacancies are the No. 2 official at the Federal Emergency Management Agency, the department’s top lawyer and the head of the country’s immigration system.

That has led to a cascade of other unfilled jobs, a vacuum of leadership causing major decisions to be deferred and a drop in morale at the agency that was born out of the terrorist attacks of Sept. 11, 2001, to coordinate the government’s response to threats, said people close to DHS. After a chaotic rollout over the weekend of restrictions on many travelers from Europe — where those returning to the U.S. were held for hours in cramped conditions — there are new concerns that the agency isn’t prepared to manage what’s to come.

“You have the vacancies, the musical chairs with positions throughout the organization and policies that come down without a lot of forethought putting added stress on a workforce that already has an extremely crucial job to protect the homeland,” said David Lapan, who was a spokesman for DHS during Trump’s first year in office. “So at what point do we break them?”

To Lapan, the chaotic scenes at airports over the weekend were a reminder of what happened when, in the early days of his presidency, Trump abruptly announced travel restrictions on passengers coming from predominately Muslim countries without giving DHS time to prepare.

. . . .

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

Now, lets hear from the always amazing Betsy Woodruff Swan over at her “new home” Politico on how DHS has, predictably, tried to “hide the ball” on the coronavirus exposure of its own employees:

Nearly 500 Homeland Security employees are quarantined because of the novel coronavirus, and at least 13 are confirmed or presumed COVID-19 positive, according to documentation reviewed by POLITICO.

A DHS spokesperson would not to comment on the record for this story.

Advertisement

The department previously revealed that eight Transportation Security Administration officers had contracted COVID-19.

But the latest numbers are higher and highlight the challenge the novel coronavirus poses to the federal workforce. More than 240,000 people work for DHS, making it the third-largest workforce in the federal government. Many of those employees interact with numerous people every day as part of their work, including employees with Customs and Border Protection and the TSA.

“The department’s leadership is going to have to pay very close attention as this public health crisis evolves,” said John Cohen, former acting undersecretary of intelligence and analysis. “It has to be concerned that its ability to carry out its core mission could be compromised if there’s a widespread outbreak of the virus among DHS personnel. And quite frankly, that’s something that federal, state, and local officials need to be concerned about across the board — that this virus will spread among first responders, law enforcement, and Homeland Security personnel, compromising the ability of those organizations to protect the public.”

. . . .

“Because of the president’s outsized focus on the immigration enforcement part of the DHS mission set — since immigration is not the only thing in DHS’ mission — the organization has been under a lot of strain over the last three years,” he said. “The focus on immigration, lots of attention, lots of presidential pressure, vacancies, changes in leadership, the government shutdown, people having to work without pay — after all of that, add on this pandemic and I think you have cause for concern about a workforce that has been under extended stress now having to endure yet more.”

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

Go to the links above for the complete articles.

The vast, vast majority of so-called “civil immigration enforcement” has little to do with legitimate national security. In fact, the regime’s obsession with inflicting unnecessary cruelty and dehumanization on desperate migrants, most of whom, at worst, are merely seeking to save or improve their lives, has actually hampered the Government’s prosecutions of serious crimes, clogged courts and jails with minor immigration offenders, and reduced removals of those with serious criminal records. https://www.washingtonpost.com/immigration/the-trump-administrations-immigration-jails-are-packed-but-deportations-are-lower-than-in-obama-era/2019/11/17/27ad0e44-f057-11e9-89eb-ec56cd414732_story.html In other words, misguided priorities, wasted resources, and unnecessary pain.

So, it’s hardly surprising that faced with a genuine crisis that threatens health and safety, the DHS is rudderless, ill-prepared to respond, and continues to hide the real human consequences of its malicious incompetence, thereby endangering both its own line employees as well as the entire U.S. public.

Betsy Woodruff Swan is one of my favorite guest panelists on “Meet the Press.” Clear, concise, articulate, analytical! I assisted Betsy occasionally in the past when she was at The Daily Beast. I hope that in her new role she will get “re-involved” in immigration coverage. In any event, great to “post” you again, Betsy!

PWS

03-19-20

BREAKING: FINALLY, SOME COMMON SENSE & DECENCY PREVAILS, AS DHS WILL SUSPEND MOST INTERIOR ENFORCEMENT!

https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html

Maria Sacchetti & Arelis R. Hernandez report for WashPost:

United States immigration authorities will temporarily halt enforcement across the United States except for its efforts to deport foreign nationals who have committed crimes or who pose a threat to public safety. The change in enforcement status comes amid the coronavirus outbreak and aims to limit the spread of the virus and to encourage those who need treatment to seek medical help.

Immigration and Customs Enforcement said late Wednesday that its Enforcement and Removal Operations (ERO) will “delay enforcement actions” and use “alternatives to detention” amid the outbreak, according to a notification the agency sent to Congress.

ICE told members of Congress that its “highest priorities are to promote lifesaving and public safety activities.”

[[Mapping the spread of the coronavirus]]

“During the COVID-19 crisis, ICE will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances,” according to the notification. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”

The agency, which is a part of the Department of Homeland Security, did not immediately respond to questions about how many of the approximately 37,000 detainees it has in custody will remain there. Nearly 20,000 in ICE custody have some sort of criminal history, but it remained unclear how many of those people have serious criminal violations in their past.

. . . .

*********

Read the complete article at the link.

Finally, a ray of sanity and humanity from DHS! Still no definitive word from EOIR.

Just today, the BIA went to the trouble of disingenuously and stupidly giving DHS authority to detain nearly all asylum seekers, even those who pose neither security nor absconding risks. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

We’ve actually gotten to the sad point where DHS occasionally acts more rationally than EOIR. Nothing to write home about. But, shows how totally perverted justice has become under Barr and the toadies at EOIR. Also says loads about those in Congress and the Article III Judiciary who have allowed EOIR to continue to heap abuses on migrants in clear violation of the Due Process Clause of our Constitution.

Due Process Forever!

PWS

03-18-20

PWS

Due Process Forever!

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🤡☠️

“The cells stink. The toilets don’t flush. There’s never enough soap. They give out soap once a week. One bar of soap a week. How does that make any sense?”

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