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

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

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

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

Her official EOIR bio is below.

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

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

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

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

🇺🇸 Due Process Forever!

PWS

04-19-23

⚖️FINALLY, HOUSE TO EXAMINE GARLAND’S DYSFUNCTIONAL, MISMANAGED, LEADERLESS IMMIGRATION “COURTS” & NEED FOR DUE-PROCESS-FOCUSED REFORMS! — Tal Kopan Reports For SF Chron!

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Read: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it

WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.

The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.

Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.

Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.

Read more: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

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

Read Tal’s complete report at the link.

Welcome and long, long, long overdue news! But, is it too little, too late?

Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy. 

Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from experts  who understand the full legal and human effects of Garland’s complacent and ineffectual leadership. 

It will also come a year after The Chronicle reported that immigration court policies and structure have allowed sexually inappropriate behavior and misconduct among judges and staff to flourish, which prompted the Justice Department to kick off a study of how to overhaul its procedures.

The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.

In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!

The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance. 

Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.

Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it. 

The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.

Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.

In other words, Garland has been a disaster for those committed to due process, racial justice,  equal treatment under law,  and a diverse, welcoming, stable American democracy.

Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!

🇺🇸Due Process Forever,

PWS

01-14- 21

🤮🤯☠️👎🏽 COMPLETE DISCONNECT @ “JUSTICE” — WHO WON THE 2020 ELECTION, ANYWAY? — Even As He Disses Progressive Human Rights Advocates & Bashes Migrants In Court, Garland Continues To Employ Highly Unqualified “Stephen Miller Acolyte” As Top Judge In His Biased & Broken “Courts!” —  Tracy Short “Cheered” Trump’s Most Heavy-Handed Enforcement Actions — Now He’s Garland’s “Top Judge” In a Wholly-Owned System That Abuses Migrants & Consistently Turns Out Sloppy, Unprofessional Work! 

 

https://www.law360.com/immigration/articles/1454701/docs-show-ice-atty-cheered-judge-s-arrest-first-of-many-

Docs Show ICE Atty Cheered Judge’s Arrest: ‘First Of Many?’

By Brian Dowling

Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.

The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.

Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”

“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”

Short is now chief immigration judge for the U.S. Department of Justice‘s Executive Office for Immigration Review, while Albence and Blank have since moved into the private sector.

Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.

The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.

The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.

The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.

Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.

The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.

In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.

Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.

The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.

The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.

ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.

The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.

Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”

“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.

ICE and the Department of Justice declined to comment on the filing when reached Wednesday.

The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.

American Oversight is represented in-house by Katherine M. Anthony.

ICE is represented by Michael Sady of the U.S. Attorney’s Office for the District of Massachusetts.

The case is ACLU of Massachusetts et al. v. ICE, case number 1:21-cv-10761, in the U.S. District Court for the District of Massachusetts.

–Editing by Orlando Lorenzo.

Update: This article has been updated to include comments from the ACLU.

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

Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump. 

His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”

No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself  “out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration! 

I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants! 

Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives. 

🇺🇸Due Process Forever!

PWS

01-134-22

⚖️”THEY BELONG IN THE TRASH BIN” 🗑☠️ — NAIJ CAUTIOUSLY HOPEFUL THAT END OF QUOTAS WILL BRING MEANINGFUL CHANGE — Will Director David Neal Topple Toxic Top-Down Paramilitary Bureaucratic Structure @ EOIR? — Courts Aren’t “Agencies” & Can’t Be “Micromanaged” By “Edicts From On High” — Meaningful Advance Input From Judges, Court Clerks, Stakeholders, Outside Judicial Experts Has Been MIA @ EOIR For Decades, & Disaster & Dysfunction In Courts Show It!

Honorable Mimi Tsankov
Honorable Mimi Tsankov
U.S. Immigration Judge
President, National Association of Immigration Judges (“NAIJ”)

For immediate release – October 20, 2021

Contact: Jamie Horwitz, jhdcpr@starpower.net, 202/549-4921

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.

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

Hon. David. L. Neal
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!

🇺🇸Due Process Forever!

PWS

10-24-21

🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

Erica Newland
Erica Newland
Former DOJ Attorney
Photo source: lawfareblog.com

https://www.nytimes.com/2020/12/20/opinion/trump-justice-department-lawyer.html?referringSource=articleShare

. . . .

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

. . . .

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

Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along  to get along with fascism, is wrong. Duh!

It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.” 

But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”  But, that doesn’t mean that the rest of us can’t demand some accountability for participation in  what are essentially “crimes against humanity.” 

Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.

It’s also why the the Biden-Harris team that takes over at DOJ must: 

  1. immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity; 
  2. replace them with qualified individuals from the NDPA; and 
  3. be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies. 

American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations). 

The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,  failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.

⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

PWS

12-21-20

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

   

🏴‍☠️☠️⚰️KAKISTOCRACY WATCH: AILA Blasts Appointment Of Prosecutors Without Judicial Qualifications To Top Judicial Positions in Billy the Bigot’s Weaponized Anti-Due-Process “Court” System — Dysfunction, Bias, Illegitimate Decisions Run Rampant As Congress, Article IIIs Fail to Enforce U.S. Constitution!

Trump Administration Makes Immigration Courts an Enforcement Tool by Appointing Prosecutors to Lead

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).

AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”

Among the recent actions taken by this administration to bias the immigration courts:

More AILA resources on the immigration courts can be found at: https://www.aila.org/immigrationcourts.

Cite as AILA Doc. No. 20070696.

 

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As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.

There are three groups blocking the way:

  • The Trump Administration, where due process only applies to Trump and his corrupt cronies;
  • GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
  • Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.

The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.

I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands! 

Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values. 

https://immigrationcourtside.com/2020/07/06/%f0%9f%98%8e%f0%9f%97%bd%e2%9a%96%ef%b8%8fgood-news-9th-cir-deals-another-blow-to-stephen-millers-illegal-white-nationalist-war-on-asylum-now-will-the-supremes-majority-stan/

What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws. 

But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!

The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments. Time to throw the “non-believers” and their enablers out of office.

This November, vote like your life and our country’s existence depend on it! Because they do!

PWS

07-07-20

☠️⚰️👎🏻🤡CLOWN COURT REPORT: BILLY THE BIGOT BARR APPOINTS STUNNINGLY UNQUALIFIED DHS ENFORCEMENT MAVEN, WITHOUT JUDICIAL EXPERIENCE, TRACY SHORT, AS NEW CHIEF IMMIGRATION “JUDGE” — Shock, Anger, Outrage Spreading Across Immigration & Legal Communities At Latest “Middle Finger” To Due Process & Fundamental Fairness Flipped By Racist Administration Of Human Rights Abusers!

💀☠️⚰️🏴‍☠️

https://www.justice.gov/eoir/page/file/1291891/download

July 2, 2020
EOIR Announces New Chief Immigration Judge
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Tracy Short as the Chief Immigration Judge of EOIR’s Office of the Chief Immigration Judge.
Biographical information follows:
Tracy Short, Chief Immigration Judge
Attorney General William Barr appointed Tracy Short as the Chief Immigration Judge in June 2020. Chief Judge Short received a Bachelor of Arts in 1990 from Texas Christian University and a Juris Doctor in 1995 from the Louisiana State University Law Center. Chief Judge Short began his legal career in 1995 as a judicial law clerk for Judge James M. Dozier, Jr., of the Third Judicial District Court of Louisiana. From 1997 to 1998, he served as a public defender, representing indigent criminal defendants in Louisiana state courts, while also practicing civil law. From 1998 to 1999, Chief Judge Short was an assistant attorney general for the Louisiana Department of Justice where he represented the State of Louisiana in civil litigation. From 1999 to 2000, he also served as a judicial law clerk for Justice Chet D. Traylor of the Louisiana Supreme Court. From 2000 to 2001, Chief Judge Short was a judicial law clerk for Judge Robert B. Maloney of the U.S. District Court for the Northern District of Texas. From 2001 to 2003, Chief Judge Short litigated removal cases on behalf of the Department of Justice as trial attorney with the former Immigration and Naturalization Service in Dallas. From 2003 to 2005, Chief Judge Short served as Assistant Chief Counsel in the Dallas office of U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA). In 2005, he was appointed as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office (USAO) for the Northern District of Texas, where he handled complex civil litigation involving ICE. In 2007, Chief Judge Short was appointed as a SAUSA in the USAO for the Eastern District of Texas, where he litigated criminal cases. From 2007 to 2009, he served as the Acting Deputy Chief Counsel and Senior Attorney in OPLA’s Dallas office. As a Senior Attorney, he litigated significant and complex immigration cases and served as the lead attorney for matters involving customs law and criminal investigations. From 2009 to 2015, he served as Deputy Chief Counsel in OPLA’s Atlanta office, where he managed litigation operations and client services in a multi- state field office. From 2015 to 2017, Chief Judge Short served as Counsel to the U.S. House of Representatives, Committee on the Judiciary’s Subcommittee on Immigration and Border
Communications and Legislative Affairs Division

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Security. From January 2017 to June 2020, he served as the ICE Principal Legal Advisor and, later, as a Senior Advisor to the ICE Acting Director. He is a member of the Louisiana State Bar Association and the State Bar of Texas.
— EOIR —
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all the cases it adjudicates.

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The final paragraph above is, of course, a sick joke.

I predict that we will hear more from the legal and the human rights communities about this latest abuse of authority by a corrupt White Nationalist regime committed to a program of crimes against humanity.

Due Process Forever!

This November, vote like your life depends on it. Because it does!

PWS

07-02-20

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

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February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

TAL @ SFCHRONICLE: FRAUD WASTE & ABUSE: DHS “Subpoenas” Dan Kowalski – Can ICE Get Any More Zany?

ICE subpoenas immigration lawyer in leak hunt

By Tal Kopan

The Trump administration has subpoenaed an immigration attorney in an attempt to determine who leaked an internal memo that laid out how Immigration and Customs Enforcement should implement Attorney General Jeff Sessions’ decision to restrict political asylum for victims of domestic violence and gang crimes.

The attorney said he doesn’t intend to reveal his sources or any other information about how he obtained the memo.

The subpoena was sent to Colorado-based immigration attorney Daniel Kowalski, who is also the editor of Bender’s Immigration Bulletin, an immigration law journal published by LexisNexis. It demands that Kowalski hand over “all information” related to the memo he posted in July, including when, how and where he got it. The summons asks for “contact information for the source of the document.”

The subpoena was sent by Special Agent Daniel Del Castillo, an officer in ICE’s Office of Professional Responsibility. ICE did not immediately comment on the subpoena.

At issue is a July 11 memo written by ICE principal legal adviser Tracy Short about Sessions’ decision in June to reinterpret asylum law in such a way that most victims of domestic and gang violence wouldn’t qualify. The change could affect tens of thousands of asylum seekers in the U.S.

Immigration courts have ruled that some victims of domestic and gang violence in certain countries could establish that they were part of social groups that their governments could or would not protect, thus qualifying them for asylum. Sessions used his unique authority as attorney general to overrule those rulings and reverse the interpretation of the law.

ICE provides the attorneys who function as prosecutors in the immigration court system, and the memo lays out how those attorneys should litigate asylum cases in light of Sessions’ decision. Kowalski’s link to the memo is no longer available on LexisNexis, but the American Immigration Lawyers Association is still hosting a copy online.

Kowalski told the Chronicle he intends to ignore the demand.

Read more: https://www.sfchronicle.com/politics/article/ICE-subpoenas-immigration-lawyer-in-leak-hunt-13314928.php

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Good luck in getting any “real” judge to enforce this so-called “subpoena!”

With real national security issues facing the country, like Russian interference in our elections, and deficits out of control under Trump, DHS continues to squander our taxpayer funds on frivolous abuses of the process like this! Little wonder that the Trump Administration’s “Gonzo” immigration enforcement program has been a total failure, and that ICE has been hemorrhaging public confidence and losing political support. Yes, it has created cruelty, terrorized American communities, and energized a racist “base;” but, from a legitimate law enforcement and responsible Government perspective, it has been a bad joke!

This is kakistocracy in action!

Also, congrats to Tal on her new position at the SF Chronicle! Don’t understand how CNN could have let one of the “up and coming superstars of American journalism” get away!

PWS

10-16-18