"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Court orders in the class-action lawsuit caused Yuba’s detainee population to steadily decline, from 127 in May 2020 to zero on Oct. 27, 2021, when the last incarcerated noncitizen was released. Activists briefly celebrated and hoped to use the momentum to prevent the jail from accepting future detainees.
But ICE and Yuba County had quietly extended their contract indefinitely in 2018. The contract stipulates that Yuba County receive a minimum of $24,000 a day whether any detainees are in its jail or not. In the two months the jail was without detainees, the federal government paid Yuba County almost $1.4 million.
A report by the team overseeing the jail’s compliance with the court-ordered consent decree found that a “severe breakdown of the Jail’s mental health system” contributed to the suicide last month of a man who had been in the jail for only a few days. It also found that officials had failed to fix previously cited suicide risks, and that there was inadequate medical and mental health staffing and treatment.
“We’ve known for decades that Yuba County Jail has a horrific record of mental and medical care that has unfortunately resulted in tragic deaths and lots of pain for lots of families,” said Laura Duarte Bateman, communications director for the California Collaborative for Immigrant Justice, which organized last month’s protest against Yuba accepting new detainees.
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Read the full article at the link.
Fraud, waste, and abuse. No need for the GAO “hotline” on this one. It’s all hanging out in public view as Mayorkas & Garland bury their respective heads in the sand.
Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?
Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Predictably, nobody is pleased.
The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.
Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration. Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Thanks, guys! As I have told both of you, I really appreciate the huge contributions you have made to informing the public about this all-important, yet often misunderstood or “mythologized,” issue!
Following up on my last thought, I urge everyone to view this recent clip from “Face the Nation,” posted by Kevin on ImmigrationProf, in which reporter Ed O’Keefe succinctly and cogently explains how immigration is the “most underreported issue of 2021.” It’s fundamental to everything from COVID, to the economy, to voting rights, to racial justice, to climate change, to our position in the world.
And, I say that the absolute dysfunctional mess that Garland has presided over in hisbroken and jaw-droppingly backlogged Immigration Courts is the most widely ignored, misunderstood, mishandled, and under-appreciated part of this under-reporting!
As an example of how even “mainstream liberal progressive pundits” get it wrong by not focusing on the spectacular adverse effects of Garland’s botched handling of the Immigration Courts, check out this article by Mark Joseph Stern over at Slate. https://apple.news/AvmEJc5V0RXa8hCgKICcTOA
Overlooking Garland’s disastrous mis-handling of his “wholly owned” U.S. Immigration Courts and the unparalleled “missed opportunity” to put more brilliant progressive judges on the Federal Bench is an all too common “blind spot” for progressive pundits. Mark Joseph Stern Reporter, Slate
Stern does a “victory lap” over Biden’s 40 great Article III judicial appointments to the lower Federal Courts, closing with the astounding claim that: “Democrats are finally playing hardball with the courts.”
In truth, Dems are only belatedly starting to do what the GOP has been doing over four decades: Get your guys in the positions where they make a difference for better (Dems, in theory) or worse (GOP in practice).
Appointing a diverse, talented, progressive group of 40 out of 870 Article III Judges is an important, necessary, and long, long overdue start; but, it’s not going to make a cosmic difference overnight!
By contrast, there are about 550 Immigration Judges, the majority appointed by GOP restrictionist AGs, many with mediocre to totally inadequate credentials for the job. And, it shows in the consistently substandard performance and mistake-riddled, haphazard “jurisprudence” emanating from Garland’s EOIR.
The main qualifications for a number of these pedestrian to totally outrageous appointments appears to be willingness to carry out former GOP AGs’ restrictionist, nativist policies, or at least to adhere to the DOJ’s enforcement-oriented agenda, while ignoring, distinguishing, or downplaying the due process rights of migrants!
This is “complimented” by an appellate branch (the BIA) with about two dozen judges hand-selected or retained for notorious anti-immigrant records or willingness to “go along to get along” with the wishes of DHS Enforcement. The BIA turns out some truly horrible, almost invariably regressive, “precedents.” A number are so lacking in substance and coherent analysis that they are unceremoniously “stomped” by the Article IIIs despite limitations on judicial review and the travesty of so-called “Chevron deference” that serves as a grotesque example of Supremes-created “judicial task avoidance” by the Article IIIs.
From an informed Dem progressive perspective, it’s an infuriating, ongoing, unmitigated disaster! Only one BIA appellate judge, recently appointed “progressive practical scholar” Judge Andrea Saenz, would appear on any expert’s list of the “best and brightest” progressive legal minds in the field.
Unlike Article III Judges, who are life-tenured, EOIR Judges serve at the pleasure and discretion of the Attorney General and can be replaced and reassigned, including to non-quasi-judicial attorney positions, “at will.”
Starting with Attorney General John Ashcroft’s notorious “BIA Purge of ‘03,”GOP AGs haven’t hesitated to remove, transfer, “force out,” marginalize, demoralize, discourage from applying, or simply not select EOIR judges who stood for due process and immigrants’ rights in the face of nativist/restrictionist political agendas.
Yet, for eight years of the Obama Administration and now a year into the Biden Administration, Dem AGs have lacked the guts, awareness, and vision to fight back by “de-weaponizing” the regressive GOP-constructed Immigration Judiciary and recruiting replacements from among the “best and the brightest” among the “deep pool” of expert, intellectually fearless “progressive practical scholars.”
Not only that, but Dems have totally blown a unique opportunity to remake and establish the Immigration Judiciary not only as “America’s best judiciary” — a model for better Article IIIs — but also as a training ground for the diverse progressive judiciary of the future!
Even more significantly, tens of thousands of lives that should have been saved by an expert, due-process-oriented, racially sensitive judiciary have been, and continue to be, sacrificed on the alter of GOP nativism and Dem indifference to quality judging and human suffering in the Immigration Courts!
Compare the diverse, progressive backgrounds and qualifications of “Stern’s 40” with those on the totally underwhelming list of the most recent Garland “giveaways” of precious, life-determining Immigration Judge positions! See, e.g., https://www.justice.gov/eoir/page/file/1457171/download
The progressive talent is definitely out there to change the trajectory of the Immigration Courts for the better! Garland’s failure to inspire, recruit, appoint, and tout the “best and brightest” in American law for his Immigration Courts is a horrible “whiff” with disturbing national and international implications!
Article III Federal Courts deal with the mundane as well as the profound. By contrast, lives and futures are on the line in every single Immigration Court case! Often effective judicial review of EOIR’s haphazard, widely inconsistent, unprincipled, and one-sided decisions is unavailable, either as a legal or practical matter. The exceptionally poor performance of the Immigration Courts that continues under Garland threatens the underpinnings of our entire justice system and American democracy!
Right now, Garland’s broken system has a largely self-created 1.5+ million case ever-expanding backlog! At a very conservative estimate of four family members, co-workers, employees, employers, students, co-religionists, neighbors, and community members whose lives are intertwined with each of those stuck in Garland’s hopelessly broken, biased, and deficient system, at least 6 million American lives hang in the balance — twisting in the wind among Garland’s “backlog on steroids!” Yet, amazingly, it’s “below the radar screen” of Stern and other leading progressive voices!
I doubt that any Federal Court in America, with the possible exception of the Supremes, holds as many human lives and futures in its hands. Not to mention that “dehumanization” and “Dred Scottification” of the other in Immigration Court drifts over into the Article III Courts on a regular basis. Once you start viewing one group of humans as “less than persons” under the Constitution, it’s easy to add others to the “de-personification” process.
Yet, Garland cavalierly treats the Immigration Courts as just another mundane piece of his reeling bureaucratic mess at the DOJ. The long overdue and completely justified “housecleaning” at Trump’s anti-democracy insurrectionist regime seems far from Garland’s serenely detached mind!
For Pete’s sake, even ICE Special Agents understand the need to “rebrand” themselves by escaping the inept and disreputable ICE bureaucracy left over from Trump:
They say their affiliation with ICE’s immigration enforcement role is endangering their personal safety, stifling their partnerships with other agencies and scaring away crime victims, according to a copy of the report provided to The Washington Post.
But, Garland doesn’t understand the well-deserved toxic reputation of EOIR among legal experts? Gimme a break!
Garland also stands accountable for his spineless failure to insist on a dismantling of the bogus, illegal, immoral, and ultimately ineffectual Title 42 abomination at the Southern Border and an immediate return to the rule of law for asylum seekers.
Unless and until the Dems get serious about gutsy, radical progressive reforms of the Immigration Courts, the downward spiral of American justice will continue! Lives will be lost, and many of those who helped put Dems in power will be pissed off and “de-motivated” going into the midterms. That’s a really bad plan for Dems and for America’s future!
As Dems’ hopes of achieving meaningful Article III judicial reforms predictably are stymied, their inexcusable failure to reform and improve the Immigraton Courts that belong to them becomes a gargantuan, totally unnecessary “missed opportunity!” Talk about “unforced error!” See, e.g., https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/
If Dems suffer an “enthusiasm gap” among their key progressive base going into the key 2022 midterms, they need look no further than Garland’s tone-deaf and inept failure to bring long overdue and readily achievable progressive personnel, procedural, management, and substantive reforms to his dysfunctional Immigration Courts. That — not a false sense of achievement — should have been the “headliner” for Stern and other progressive voices!
“Expedience over excellence, enforcement over equity, gimmicks over innovation is good enough for Government work!” — The “vision” for Garland’s EOIR! But, progressive experts aren’t buying his “tunnel vision.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The emphasis on “border security” would make more sense if the Administration had restored the legal process for applying for asylum at ports of entry. Without such a process, how are individuals’ supposed to exercise their legal rights under domestic and international law to seek protection in the U.S.?
Expect these guidelines to be quickly challenged in Federal Courts by nativist GOP AGs. We’ll see how they fare!
“[W]ithout having knowledge, we’ll go directly to the slaughterhouse!” Creative Commons License“Do you still want to talk to a lawyer, or are you ready to take a final order?” “Justice” Star Chamber StyleEmma Winger Staff Attorney American Immigration Council PHOTO: Immigration Impact
“Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the United States, he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.
Despite passing the government’s initial screening and having a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”
Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent October 29 by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.
This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.
Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.
The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet the vast majority of detained people — over 70% — faced immigration courts without a lawyer this year.
ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.
Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.
As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.
The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.
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A “Jim Crow Mentality” of never being held accountable for abuses of law or human morality permeates the politicos, legislators, and Federal Judges of both parties responsible for enabling and upholding this toxic system.
Nowhere is this more obvious than at the DOJ Civil Rights Division. While pontificating on racially abusive local police policies and actions, these folks go to great lengths to overlook the DOJ-run “Star Chamber Courts” embedded in DHS’s “New American Gulag” that disproportionally harm persons of color and deny them basic legal, civil, and human rights every day.
This system is thoroughly rotten! Yet, Garland’s DOJ “defends the indefensible” in Federal Court almost every day.
An End to a Highly Controversial Quota System Imposed on Immigration Judges
This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”
WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.
Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.
“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”
“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”
In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.
The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
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Hon. David L. Neal Director Executive Office For Immigration Review USDOJ PHOTO: C-SPAN
Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?
One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.
On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.
We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!
USCIS: Effective Oct. 1, 2021, applicants subject to the immigration medical examination must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record. This guidance applies prospectively to Form I-693 signed by civil surgeons on or after Oct. 1, 2021.
WaPo: Up until Oct. 1, the Postal Service said it should take no more than three days for a piece of first-class mail to be delivered anywhere in the country. After Oct. 1, it will take between two and five days. From Oct. 3 to Dec. 26, the Postal Service is raising prices on some products through a holiday season surcharge. The price hikes are modest for some products (30 cents more for first-class package service), a bit more for others ($1 more for parcel-return service, deliveries from consumers back to retailers), and heftier still for others ($5 more for priority mail, priority express mail, parcel select and retail ground services for items weighing between 21 and 70 pounds).
NBC26: Organized by Voces de la Frontera, this action aims to increase economic and political pressure on President Biden, Vice President Harris and Congressional Democrats to deliver on their promise to pass a path to citizenship in the Build Back Better reconciliation budget bill this year.
Teen Vogue: This excerpt from “Not ‘A Nation of Immigrants’” explains how Italian immigrants used Christopher Columbus to assimilate to American culture and whiteness. For decades, Native Americans and their allies have demanded the end of celebrating Columbus, rightly characterizing him as a mercenary of the Spanish monarchy, an actor in and symbol of the onset of European genocidal colonization of the Indigenous Peoples of the Western Hemisphere.
WaPo: A U.S.-based economist won the Nobel prize in economics Monday for pioneering research that transformed widely held ideas about the labor force, showing how an increase in the minimum wage doesn’t hinder hiring and immigrants do not lower pay for native-born workers.
NYGov: Threats to report a person’s immigration status can currently be treated as a crime in cases of labor trafficking and sex trafficking, but were not previously treated as potential extortion or coercion offenses.
Documented: The courts have been pushing individual hearings forward often too soon for immigrants and attorneys to properly prepare. Individual hearings, particularly for asylum cases, require rigorous preparation both from immigrants, who must recount traumatic details of their lives for a successful case, and attorneys, who must submit dozens of pages of paperwork and work alongside their clients to equip them for the court date.
WaPo: The NBPC does not encourage members to get vaccinated and has said it would like to file a legal challenge to Biden’s mandate that all federal employees be immunized by Nov. 22, but it has not yet found lawyers willing to take the case.
AP: A federal appeals court on Tuesday tossed out California’s ban on privately owned immigration detention facilities, keeping intact a key piece of the world’s largest detention system for immigrants.
Business Insider: During his appearance on Fox News, Trump repeatedly claimed that Haitians trying to enter the US are infected with AIDS… Contrary to his assertions, the prevalence of HIV among Haitian adults aged 15 to 49 is around 1.9%, according to data from the United Nations. While that’s higher than the global rate of 0.7%, reports say Haiti’s HIV prevalence rate has declined significantly in recent decades.
Law360: A U.S. Air Force veteran has another chance to fight his deportation to Trinidad after the Third Circuit found that an immigration appeals board used the wrong legal standard to bar evidence that he may be tortured if deported.
AILA: The court held that, given petitioner’s status as a pro se litigant, her Notice of Appeal was sufficiently specific to inform the BIA of the issues challenged on appeal, and thus the BIA violated her right to due process by summarily dismissing her appeal. (Nolasco-Amaya v. Garland, 9/28/21)
Law360: The Ninth Circuit confirmed that a conviction under a state assault law criminalizing HIV transmission amounts to a federal “crime of violence” for the purposes of deporting a Salvadoran man who shot his friend, saying the key common ingredient is intent.
Law360: A California law banning private immigration detention facilities and other private prisons doesn’t pass legal muster because it would impede the federal government’s immigration enforcement, a split Ninth Circuit ruled Tuesday, undoing a lower court’s decision to keep most of the law in place as litigation proceeds.
AILA: The court granted the plaintiffs’ motion for summary judgment, holding that DOS’s interpretation of several Presidential Proclamations to prevent U.S. consulates and embassies in those countries from adjudicating visas was unlawful. (Kinsley, et al. v. Blinken, et al., 10/5/21)
AILA: The parties reached a settlement to resolve the plaintiffs’ Motion for Award of Attorneys’ Fees and Costs under the Equal Access to Justice Act (EAJA), in which the government agreed to pay $1,150,000 in attorneys’ fees and litigation costs. (Flores, et al. v. Garland, et al., 9/30/21)
CGRS: The Lowenstein Project at Yale Law School submitted today an emergency request for precautionary measures against the United States on behalf of asylum seekers who face grave dangers because the Biden administration continues to illegally block and expel them. The request was submitted under Article 25 of the Rules of Procedure to the Inter-American Commission on Human Rights (IACHR).
Law360: Texas and Louisiana called on the full Fifth Circuit to reinstate a block on the Biden administration’s policy curbing immigration enforcement operations, saying Thursday that the federal government was ducking its obligation to arrest noncitizens convicted of serious crimes.
Law360: A Libyan man formerly employed as a government worker under the Gaddafi regime and his wife have filed suit in Michigan federal court against the federal government and the Chicago asylum processing center, saying five years is too long to wait for an asylum interview.
Law360: An Afghan man who worked with the U.S. government in the Central Asian country told a California federal court that the U.S. Department of State failed to protect his children from the Taliban while their visa applications are processed.
Law360: A bipartisan group of senators announced new legislation this week that would require law enforcement to obtain a warrant before searching Americans’ digital devices at the border.
Law360: The Biden administration asked the Fifth Circuit to shelve its appeal of a lower court order blocking the federal government from approving new applications to the Deferred Action for Childhood Arrivals program while it firms up the details of a replacement rule.
AILA: Office of Refugee Resettlement (ORR) announcement of an inflationary increase to the Refugee Cash Assistance program’s monthly payment ceilings, effective October 1, 2021. (86 FR 54466, 10/1/21)
Call for Examples: The Center for Gender and Refugee Studies (CGRS) is collecting the following information regarding the treatment of asylum and withholding of removal cases following Attorney General Garland’s vacatur of Matter of A-B- I/II, Matter of L-E-A- II, and Matter of A-C-A-A-. To report an outcome in your case and share any sample case documents, please follow the instructions here. To share information regarding OIL’s position in your case, please email the following to CGRS-ABTracking@uchastings.edu. To share information regarding ICE OCC’s position in your case, please complete this survey for each individual case.
Shifting cases around without working with the parties in advance to insure that the new dates are achievable is totally insane! No experienced practitioner or expert would “run the railroad” this way! But, Garland does!
To state the obvious, many attorneys practice in multiple jurisdictions and are already fully or heavily booked. Additionally, my experience was that “move ups” without consultation with both parties, including ICE ACC, often resulted in missing ICE files, unavailable witnesses, unavailable interpreters, or incomplete fingerprint reports which caused additional unnecessary continuances and yet more “ADR.”
“Motions to continue” are not the answer. The system is already backlogged. In an obvious denial of due process, it actually discourages Immigration Judges from granting reasonable continuances in a number of ways, including bogus “case completion quotas” and onerous requirements for justifications for granting continuances. It’s ADR on steroids!
An obvious solution, ignored by Garland and his subordinates:
Return “docket control” to the local Immigration Judges where it has always belonged;
Have Immigration Judges and Court Administrators work cooperatively with the local bar, the ICE OCC, and NGOs, in advance, to come up with rational scheduling procedures that meet everyone’s legitimate needs;
Encourage ICE and the local bar to work cooperatively to identify cases that can potentially be moved up for “short hearings.” Let the parties, who have a strong joint interest in rational dockets, propose the solutions, rather than having politicos impose them from above through clueless agency bureaucrats who are unqualified to “micromanage” dockets!
The real fundamental problem here: Garland is improperly trying to “run” his huge, dysfunctional court system with bureaucrats and politicos who have no recent “real life” experience representing individuals in Immigration Court.
Garland’s inexplicable determination to eschew appointing “progressive practical experts’ with the skills and courage to fix this system has become a (totally unnecessary) national disgrace!
Judge Garland’s gross mismanagement of EOIR is “ratcheting up the pressure” on practitioners in NYC and across the nation!
Thousands of Haitian migrants removed from a makeshift camp near Texas have been sent back to Haiti. Now we’re getting our first up-close look at what they are facing upon their arrival. NBC’s Jacob Soboroff reports for TODAY from Port-au-Prince, Haiti.
Sept. 30, 2021
Eleanor Acer Senior Director for Refugee Protection, Human Rights First
Human Rights First debunks myth that seekers present a COVID health threat:
ASYLUM DOES NOT THREATEN PUBLIC HEALTH
The last week saw more of the Biden administration’s despicable deportation of Haitians and use Title 42 to deny their right to seek asylum. The administration perpetuates the false claim that their use of Title 42 is not an immigration policy, but a public health one, despite the vehement disagreement of public health experts.
Courtesy Washington Times
Migrants, many from Haiti, wade across the Rio Grande
river to leave Del Rio, Texas to avoid possible deportation.
Human Rights First also responded to the administration’s plans to use Guantanamo Bay as a migrant detention facility.
“Sending people who are seeking protection to a place that is notorious for being treated as a rights-free zone is the last thing that the Biden administration should do,” Eleanor Acer, Senior Director of Refugee Protection at Human Rights First told NPR. “It is nothing more than a blatant attempt to evade oversight, due process, human rights protections and the refugee laws of the United States.”
Maria Sacchetti Immigration Reporter, Washington Post
Even in rolling out otherwise more reasonable enforcement priorities for ICE, Mayorkas insisted on making the bogus claim that recent border arrivals present a “national security threat,” as reported by the WashPost’s Maria Sacchetti:
Mayorkas said in his memo Thursday that migrants who cross the border illegally, particularly those who arrived unlawfully over the past year or so, remain a “threat to border security” and a priority for removal. But the ACLU has argued in its lawsuit that migrants have a legal right to seek asylum.
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“Courtside’s” rating of Mayorkas’s claims: 🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥
Who would have thought that more than eight months into the Biden Administration, we’d still be arguing about basics like “migrants have a legal right to seek asylum in the US?” See, INA section 208.
Hon. Andrea Saenz Appellate Immigration Judge, BIA PHOTO: immigrantarc.org
Here’s Andrea’s bio:
Andrea Sáenz
Andrea Sáenz [was] Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services. NYIFUP is New York’s first-in-the-nation immigration public defender program representing detained immigrants facing removal. Prior to joining BDS in 2016, Andrea was a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, teaching, litigating, and working on the advocacy that grew NYIFUP at the city and state levels. Andrea has previously worked as an Immigration Staff Attorney at the U.S. Court of Appeals for the Second Circuit, a judicial law clerk at the Varick Street Immigration Court in Manhattan, an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project in Boston, and a high school ESL teacher. She teaches and trains widely on criminal immigration, detention, and litigation issues. Andrea graduated from Harvard Law School cum laude in 2008 and received her B.A. in English from the University of California, Los Angeles in 2002.
KEY QUOTE:
Andrea Sàenz, Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services
“Our platform calls for universal representation of immigrants facing deportation, because when the stakes are often literally life, death, or permanent family separation, no one should be deported simply because they couldn’t afford an attorney. We need to change, shrink, and defund the deportation system and reinvest in our communities. ICE enforcement, detention and other cruel immigration policies tear apart families, and we urge the Biden administration and the new Democratic majority congress to listen to our neighbors’ voices.”
Congratulations, Andrea! As one of my esteemed Round Table colleagues said: “Incredibly great news. I couldn’t think of anybody better and more deserving!” Nor can I!
This is great news for American Justice and for the NDPA. It’s even better news for the long suffering victims of perverted justice at EOIR and their courageous attorneys, like members of the NDPA, who have fought in the trenches for due process, human rights, and human dignity against an intentionally rigged and gamed system designed to deny all three of the foregoing. Andrea also has “EOIR creds,” having been a JLC at the Varick Street Immigration Court.
Finally, someone who has witnessed the waste, unfairness, illegality, and human carnage of failed policies enabled by EOIR’s feckless, tone deaf, careless, and complicit performance of their life-determining quasi-judicial duties. This breaks the scandalous two-decade plus exclusion of the “best and brightest” progressive expert judges from the BIA, the nation’s highest immigration and human rights tribunal, that has helped reduce due process and justice for women and people of color before EOIR to a “sick joke!”
I know that’s it’s impossible for any one person, no matter how brilliant, hard-working, and dedicated, to change the anti-asylum, anti-due process, anti-gender-fairness “culture” encouraged @ EOIR by the past Administration and, to date, not effectively repudiated by Garland. But, it is important that the voice of reason, practicality, due process, fundamental fairness, and humanity once again be heard at EOIR!
We all hope and trust that others will follow in your footsteps, Andrea, and eventually form the “new majority” of a much, much better Immigration Judiciary: That the properly generous, sensible, and humane view of asylum law established in Cardoza-Fonseca and Mogharrabi will again become the guiding lights of immigration jurisprudence rather than being parroted (but not followed), mocked, and dishonored by those whose job it is to protect individual Constitutional, legal, and human rights from Government overreach: That “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” once again becomes the vision of our Immigration Courts at all levels!
Speaking in behalf of the NFPA, we all appreciate the dedication, hard work, consistent excellence, and intellectual and moral courage it took for Andrea to put herself forward and be a pioneer for the better Immigration Judiciary of our future! On behalf of a grateful NDPA and an appreciative Round Table, thanks, congratulations again, and may the forces of due process guide you and be with you forever!
The Biden administration has condemned abuses at the border – while maintaining the policies underlying these abuses. That’s beyond cynical
Published:
06:22 Thursday, 23 September 2021
Follow Moustafa Bayoumi
You’ve probably seen a photograph haunting the internet this week: a white-presenting man on horseback – uniformed, armed and sneering – is grabbing a shoeless Black man by the neck of his T-shirt. The Black man’s face bears an unmistakable look of horror. He struggles to remain upright while clinging dearly to some bags of food in his hands. Between the men, a long rein from the horse’s bridle arches menacingly in the air like a whip. The photograph was taken just a few days ago in Texas, but the tableau looks like something out of antebellum America.
The image is profoundly upsetting, not just for what it portrays but for the history it evokes. What’s happening at the border right now puts two of our founding national myths – that we’re a land of liberty and a nation of immigrants – under scrutiny. To put it plainly, we don’t fare well under inspection.
US border patrol agents on horseback search for migrants trying to enter the United States along the US-Mexico border. Photograph: José Luis González/Reuters
. . . .
Without review, it’s impossible to know who is facing real threats of persecution when returned to Haiti. The United Nations human rights spokesperson, Marta Hurtado, said that the UN “is seriously concerned by the fact that it appears there have not been any individual assessments of the cases”. Why does the Biden administration not share her concern?
One has to wonder if the same policies expelling Haitians from the US today would be in effect if those arriving at the border were Europeans or even Cubans. If history is any guide – for decades, the US privileged Cubans over Haitians and other Caribbean peoples in immigration matters – the answer is no.
It’s one thing for the Biden administration to condemn abuses conducted by its own government that recall the worst parts of our national history. But it’s quite another to do so while maintaining the policies that enable those abuses. That’s not just cynical. It’s despicable.
Moustafa Bayoumi is the author of How Does It Feel to Be a Problem?: Being Young and Arab in America
Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians.
AP By Joshua Goodman and Matthew Lee, September 21, 2021
The Biden administration’s special envoy to Haiti has resigned, protesting “inhumane” large-scale expulsions of Haitian migrants to their homeland wracked by civil strife and natural disaster, U.S. officials said Thursday.
Daniel Foote was appointed to the position only in July, following the assassination of Haiti’s president. Even before the migrant expulsions from the small Texas border town of Del Rio, the career diplomat was known to be deeply frustrated with what he considered a lack of urgency in Washington and a glacial pace on efforts to improve conditions in Haiti.
Foote wrote Secretary of State Antony Blinken that he was stepping down immediately “with deep disappointment and apologies to those seeking crucial changes.”
“I will not be associated with the United States inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti, a country where American officials are confined to secure compounds because of the danger posed by armed gangs to daily life,” he wrote. “Our policy approach to Haiti remains deeply flawed, and my policy recommendations have been ignored and dismissed, when not edited to project a narrative different from my own.”
Two U.S. officials with direct knowledge of the matter confirmed the resignation on condition of anonymity because they were not authorized to discuss it publicly.
One official, who was not authorized to publicly discuss personnel matters and spoke on condition of anonymity, said that Foote had consistently sought greater oversight of Haiti policy and that the administration did not believe his requests were appropriate.
Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians camped on the Texas border. The camp has shrunk considerably since surpassing more than 14,000 people on Saturday – many of them expelled and many released in the U.S. with notices to report to immigration authorities.
The White House is facing sharp bipartisan condemnation. Democrats and many pro-immigration groups say efforts to expel thousands of Haitians without a chance to seek asylum violates American principles and their anger has been fueled by images that went viral this week of Border Patrol agents on horseback using aggressive tactics against the migrants.
. . . .
___
Goodman reported from Miami, Lee from New York on the sidelines of United Nations General Assembly meetings.
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Read the complete article at the above link.
And, there are more “strange happenings” within the flailing Biden immigration/human rights bureaucracy.
Over at ICE, “Immigration pro” John Trasviña is out at OPLA after only a few months in office:
The Biden administration has appointed seasoned Boston immigration attorney Kerry Doyle to become its immigration enforcement agency’s top prosecutor.
U.S. Immigration and Customs Enforcement officials confirmed to GBH that Doyle, previously of Graves & Doyle, will be its principal legal advisor. The office she will lead is the largest legal program within the Department of Homeland Security, with over 1,250 attorneys and 290 support personnel.
The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts.
Doyle has been an outspoken critic of the agency and has led many lawsuits against it.
She is a graduate of the American University Washington School of Law, and George Washington University. She started her career as a legislative assistant to former U.S. Rep. Bob Wise (D-W.Va.), and became an attorney for Legal Services for Vietnamese Asylum Seekers in 1993. She was managing attorney for the International Institute of Boston from 1998 to 2001, before founding Graves & Doyle with partner William E. Graves Jr.
The Boston-based firm handled a breadth of immigration issues, from citizenship, to business and family immigration, federal litigation, asylum, and deportation cases.
Doyle took the case of Iranian student Mohammad Shahab Dehghani Hossein Abadi, who was enrolled at Northeastern University and deported because it was assumed by Logan Airport border patrol agents that he would remain in the U.S. beyond the time frame of his student visa. She co-authored an op-ed in The Boston Globe about Abadi’s case, entitled “Customs and Border Protection gone rogue.”
Doyle has also been particularly outspoken against ICE on Beacon Hill, including one appearance in January 2020, where she called ICE “out of control” during a hearing over the Safe Communities Act, which would limit how state and local municipalities interact with federal immigration enforcement.
Doyle declined to comment on her appointment, asking GBH to speak with ICE’s media office, which did not return requests for comment.
Susan Church of Demissie & Church has known and worked with Doyle for over two decades.
“She actually taught me much of what I know about immigration law,” said Church. “I can’t imagine a better, more knowledgeable attorney to run that agency because she knows the immigration system in and out.”
Church and Doyle co-filed a 2017 federal lawsuit against former President Donald Trump with the American Civil Liberties Union after he banned entry to the U.S. from seven Muslim-majority countries.
The Office of the Principal Legal Advisor has control over whether immigrants are released from detention, what financial amounts — or bonds — are set for them to be released, or whether a lawsuit gets postponed.
“There will be a tremendous opportunity to craft policy procedures, rules and the like to make sure that immigrants receive a fair day in court and a fair hearing and have a fair shot at getting a life in the United States,” said Church.
Biden’s Department of Homeland Security has been criticized for continuing to keep immigrants detained with high bond amounts, but Church thinks Doyle’s appointment shows there may be a shift.
“I think it’s clear that the Biden administration is following the path of the progressive district attorney and installing somebody in charge who cares about safety issues, but also cares deeply about the rights and the protections for immigrants,” she said, referring to the recent nomination of Suffolk County District Attorney Rachael Rollins to be the U.S. attorney.
Carol Rose, executive director of the ACLU of Massachusetts, also applauded the pick. “We hope Kerry Doyle’s outstanding track record of fighting for immigrants’ rights continues in her new position at ICE,” Rose said. But, she added, “the ACLU remains committed to holding this and other government agencies accountable.”
The former principal legal advisor John D. Trasviña announced his retirement at the beginning of September.
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On one hand, Kerry Doyle is well qualified and presumably will work to restore professionalism, common sense, and humanity to what had been a misdirected, counterproductive, and totally out of control agency under Trump and his toadies.
But, there has to be more to Trasviña’s “retirement” than meets the eye. One does not normally accept a senior level policy position in a new Administration while planning to “retire” within a few months.
So, something else is going on here. Many of us had applauded the appointment ofTrasviña, a high profile, nationally respected, experienced expert in immigration, civil rights, human rights, and racial justice, at OPLA. During his short tenure, he issued helpful memos and guidance expanding the use of prosecutorial discretion (“PD”) at ICE. More aggressive and sensible use of PD is critical to controlling and eventually eliminating the largely Government-created 1.4 million case Immigration Court backlog.
Best wishes to Kerry in her new position!
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Immigration and human rights are a mess because Biden and his advisors ignored expert advice to move quickly and aggressively to restore robust refugee and asylum systems and to institute long overdue progressive reforms and personnel changes at EOIR. Right now, there appears to be neither an overall plan nor the dynamic progressive leadership and better Immigration Judiciary to carry it out.
It’s going to take more than a few intellectually dishonest expressions of “outrage” from Biden Press Secretary Jen Psaki and a bogus “investigation” of Border Patrol Agents who were only carrying out the cruel, inhumane, and racist policies developed and approved at the highest levels of the Biden Administration, to wipe out the images of the abuse of asylum applicants at our border and the deep-seated racial prejudices and biases it represents. 🏴☠️It’s all about dehumanization and continuing “Dred Scottification” of the “other”🤮☠️ — predominantly courageous, yet vulnerable, people of color!
For these reasons, we do not see a strong justification for concluding that the IIRIRA detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. That means the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos’ enforcement priorities for nondetention decisions.
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Finally, some rationality and common sense! A partial stay from the ultra-conservative 5th Circuit is a good sign for the Biden Administration on this issue.
PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.
Opinion by Judge Watford; Dissent by Judge Callahan
* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.
STAFF SUMMARY:
Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).
The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
DIAZ-RODRIGUEZ V. GARLAND 3
both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.
Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.
Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child
4 DIAZ-RODRIGUEZ V. GARLAND
abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.
Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).
Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.
*****************
Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.
Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.
Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.
It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.
While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!
At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”
“Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“We voted to rehear this case en banc to reconsider our “single factor rule,” which we have applied in considering petitions for review from decisions by the Board of Immigration Appeals (“BIA”). The single factor rule, as we have applied it, requires us to sustain an adverse credibility finding if “one of the [agency’s] identified grounds is supported by substantial evidence.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003). On rehearing en banc, we hold that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and we overrule our prior precedent establishing and applying it. We remand this case to the three-judge panel to re-examine the petition for review in light of our clarification of the standard for reviewing the BIA’s adverse credibility determinations. … Given the REAL ID Act’s explicit statutory language, we join our sister circuits and hold that, in assessing an adverse credibility finding under the Act, we must look to the “totality of the circumstances[] and all relevant factors.” § 1158(b)(1)(B)(iii). There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases. We remand this case to the three-judge panel for reconsideration in light of the newly articulated standard for reviewing adverse credibility determinations.”
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Even with Article III Courts, including the 9th Circuit, generally “drifting right,” “good enough for Government work” has been rejected! That ought to help Garland boost the EOIR backlog!
The EOIR/DOJ policy right now appears to be “give any reason to deny,” hope that OIL can make at least one of them stick, and count on righty Circuit Judges to “swallow the whistle.” While that has certainly happened in the 5th Circuit, and to some extent in the 11th Circuit, there still appear to be enough Article IIIs out there critically reviewing EOIR’s too often patently substandard work product to make Garland’s indolent “look the other way” approach to the EOIR mess highly problematic.
Analyzing all the factors also might be inconsistent with mindless, due-process-denying three or four per day “merits quotas,” invented and imposed by Jeff “Gonzo Apocalypto” Sessions (someone with zero (0) Immigration Court experience and a well-justified lifetime reputation as a racist xenophobe — how does Matthews v. Eldridge allow a guy like that to pick and “run” judges — the Article IIIs might choose to look the other way, but most L-1 students know this is wrong and unconstitutional).
Just aimlessly listing common testimonial problems and hoping OIL will find one or more of them actually in the record is much faster (if you don’t count the impact of Circuit remands!) That it’s inconsistent with the statute, the Constitution, and, actually, BIA precedent seems to be beside the point these days. Of course, EOIR’s “assembly line jurists” also get “dinged” for remands.
Is there is anybody left at EOIR HQ today who could properly teach “totality of the circumstances” under REAL ID?
My observation from Arlington was that the number of adverse credibility findings and asylum denials went down substantially once the Fourth Circuit, and even occasionally the BIA, began enforcing “totality of the circumstances and all relevant factors” under REAL ID. As lawyers “got the picture” and began providing better independent corroborating evidence and documentation, the ability to “nit-pick” testimony, find the respondent “not credible,”and make it stand up on review diminished, as its well should have!
Of course, in my mind, REAL ID and the Fourth Circuit were just “re-enforcing and adopting” observations that members of our deposed “Gang of Four or Five” had made in numerous dissents from our BIA colleagues “undue deference” to poorly reasoned and thinly supported adverse credibility determinations, particularly in asylum cases.
More careful analysis of the record as a whole, often with the help of JLCs, became the rule at Arlington. And, after a few initial setbacks in the Fourth Circuit, ICE in Arlington generally stopped pushing for unjustified adverse credibility rulings and adopted approaches that actually complied with Fourth Circuit law.
The antiquated “contemporaneous oral decision format,” put on steroids by Sessions and Barr, is particularly ill-suited to the type of careful analysis required by the current statute, not to mention due process. And, having far too many newer Immigration Judges who have no immigration background and who have never had to represent an individual in Immigration Court is also a formula for failure, particularly when combined with inadequate training and idiotic “quotas.”
I’m not sure that the famous Rube Goldberg could have created a more convoluted,inefficient, and irrational process than exists at today’s EOIR. It simply can’t be fixed without leadership and assistance from outside experts who understand the problems (because they and their clients have “lived them”) and who aren’t wedded to all the mistakes and failed “silver bullet solutions” of the past!
The EOIR process is so “user friendly” that any unrepresented two-year-old can easily navigate it! Rube Goldberg (1883-1970) — 1930 Public Realm
By contrast with the EOIR mess, it’s amazing what changes an expert appellate body that actually takes its job and due process seriously can effect. Imagine if we had an expert BIA that made due process and treating individuals fairly “job one,” rather than operating as a “whistle stop on the deportation railroad.”
The ongoing EOIR clown show 🤡 just keeps getting exposed. But, nobody in charge seems to care! That’s a shame, 🤮 because “human lives, ⚰️ and perhaps the survival of our democracy, 🇺🇸 hang in the balance here!”
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
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Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
Here’s a key quote from Circuit Judge Kayatta’s majority opinion:
KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara (“Hernandez”), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire (“Strafford County Jail”) pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.
Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment
of the district court, arguing that the procedures employed at Hernandez’s original bond hearing comported with due process and, consequently, that the district court’s order shifting the burden of proof was error. Although we agree that the government need not prove a detainee’s flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.
. . . .
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Note that the Garland GOJ continued to defend EOIR’s unconstitutional procedures. So, don’t be shocked if they ask the Supremes to intervene. And the current Supremes have too often been happy to ignore the Due Process Clause when it comes to the rights of migrants of color.
But, it’s some progress toward eventually dismantling the “New American Gulag” — the one that Biden is still running (despite campaign promises to the contrary) and that righty Federal Judges and nativist GOP AGs in the Fifth Circuit are committed to expanding!
For the NDPA, the war to save humanity never ends!
