🤪GARLAND’S ZANY COURTS! — AG Agrees That His Judges Will Comply With Constitution In Bond Cases, But Only In CD CAL!🤯

Yup, it’s a great settlement! But, only for those in the CDCA or who don’t understand how totally screwed up, unfair, directionless, visionless, and out of control Garland’s “Clown Courts” 🤡 are!

Check out Hernandez v. Garland here:

https://www.aclusocal.org/en/press-releases/court-ice-cant-detain-immigrants-based-poverty

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So, Garland agrees that “his judges” will comply with the Constitution, but ONLY in the CDCA. In the other 95% of Immigration Courts nationwide, they evidently are free to choose to act in a “normal” arbitrary and capricious unconstitutional manner. Nice!

Of course, by initially setting no bond or more than $10K in any case, DHS can unilaterally invoke the “regulatory clamper” (8 CFR 1003.19(i)(2)) to defeat any release on bond pending appeal. Since the BIA routinely holds bond appeals until the detained merits cases are complete, then dismisses them as “moot,” the Administration retains lots of tools to act unconstitutionally.

Another nice touch!

Does anyone truly understand how completely screwed up and unconstitutional Garland’s “star chambers courts” are?

This is what “justice” looks like in 21st Century America, in a Dem Administration no less? Gimmie a break?

A better BIA might have imposed Constitutional due process requiring consideration of ability to pay nationwide, thus preempting the need for more Article III Court litigation and inconsistent decisions affecting the fundamental human right of liberty!

A “better BIA” might have properly limited the DHS’s unconstitutional authority to use the “clamper” to block release on bond, rather than reducing Immigration Judges to a “clerical” role. See, e.g., Matter of Joseph (“Joseph I”), 22 I&N Dec. 660, 674 (BIA 1999) (Moscato, Board Member dissenting, joined by Schmidt, Chair, and Heilman, Villageliu, Guendelsberger, Rosenberg, Jones, Board Members).

A better AG might have eliminated the unconstitutional “clamper” that gives ICE counsel unfair leverage in bond cases.

🇺🇸Due Process Forever!

PWS

04-01-22

⚖️🧑🏽‍⚖️SOURCE OF RACIAL TENSION & ENDEMIC INEQUALITY 🤮: U.S. COURTS: Nan Aron Of Alliance For Justice Speaks Out On Why We Need Progressive Judges!

https://www.washingtonpost.com/politics/trump-biden-supreme-court/2020/08/28/0f0a8158-e937-11ea-bc79-834454439a44_story.html

By Seung Min Kim in the WashPost:

. . . .

But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.

The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.

“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.

She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”

. . . .

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Read the full article at the link,

Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.

Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:

- Ridiculously convoluted and entirely unnecessary 2-year hiring process (under former Director Anthony C. Moscato, the Clinton Administration could sometimes do it in a fraction of that time with better, or at least no worse, results);
- Eschewing progressive judicial candidates, including well-qualified underrepresented groups, with scholarly credentials and practical expertise in immigration, asylum, human rights, and due process in favor of an endless stream of largely “insider only, don’t rock the boat” picks;
- Leaving numerous positions unfilled at the end of the Administration for White Nationalist xenophobe Jeff Sessions to fill;
- Ignoring obvious, achievable management reforms like e-filing!

The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history!

In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!

Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!

It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!

It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!

Due Process Forever! Repeating past mistakes, never!

PWS

08-30-20

IT’S HERE! — IMMIGRATION HISTORY AT ITS BEST! — Months In The Making, The “Schmidtcast,” A 7-Part Series Featuring Podcaster Marica Sharashenidze Interviewing Me About My Legal Career “American Immigration From Mariel to Miller” — Tune In Now!

Marica Sharashenidze

Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.

Hon. Paul Wickham Schmidt
U.S. Immigraton Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

Judge (Retired) Paul Wickham Schmidt

Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation. He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”). In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.

Here are links:

https://pws.transistor.fm/

https://feeds.transistor.fm/the-life-and-times-of-the-honorable-paul-wickham-schmidt

And here are some “Previews with links to each episode:”

APRIL 23, 2020 • 66 MINUTES

Concluding Remarks

So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?

APRIL 22, 2020 • 48 MINUTES

The Mariel Boatlift Crisis

The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.

APRIL 22, 2020 • 25 MINUTES

The Refugee Act of 1980

The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.

APRIL 22, 2020 • 54 MINUTES

The 1990s BIA

In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.

APRIL 22, 2020 • 48 MINUTES

Creating EOIR

In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.

APRIL 21, 2020 • 36 MINUTES

The Immigration Reform and Control Act

In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.

APRIL 18, 2020 • 43 MINUTES

The Ashcroft Purge

Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.

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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.” And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions.

Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.

Happy listening!

Due Process Forever!

PWS😎

05-19-20

THE HILL: Nolan Says Sessions Got It Right In Matter of A-B- — Not Me!

http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it

Family Pictures

Nolan writes:

. . . .

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;

That membership in that group is a central reason for the alleged persecution; and

That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

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Read Nolan’s complete article over at The Hill at the above link.

I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.

I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.

PWS

06-17-18

HON. JEFFREY CHASE: MORE INTERNAL EVIDENCE OF POLITICIZED HIRING AND UNNECESSARY DELAYS UNDER SESSIONS AS EOIR APPEARS TO JOIN TRUMP’S “WAR ON THE CAREER CIVIL SERVICE” BY ATTACKING THE CAREER PROMOTION SYSTEM FOR BIA ATTORNEY ADVISORS!

https://www.jeffreyschase.com/blog/2018/5/27/eoirs-hiring-practices-raise-concerns

May 27 EOIR’s Hiring Practices Raise Concerns

In response to a whistleblower’s letter from within EOIR, ranking Senate Democrats have requested an investigation into improper political influence in EOIR’s hiring criteria for immigration judges and members of the Board of Immigration Appeals. https://democrats-judiciary.house.gov/news/press-releases/top-dems-request-inspector-general-investigation-allegations-illegal-hiring. Following up on an April 17 letter to Attorney General Sessions, the Democratic leaders on May 8 stated that in subsequent weeks, more whistleblowers have come forward to corroborate the delaying or withdrawal of IJ appointments to candidates whose political views are not believed to align with those of the present administration.

There seems to be little if any doubt among EOIR employees that this is in fact happening. The resulting slowdown in IJ hiring is further exacerbating the huge backlog of cases plaguing the immigration courts. There are presently no judges sitting in the Louisville, Kentucky immigration court; other courts are simply understaffed. In what my friend and fellow blogger Hon. Paul W. Schmidt has termed “ADR” (Aimless Docket Reshuffling), sitting IJs are being detailed to hear cases in courts with vacancies, forcing the continuance of cases on their own dockets, some of which have been waiting two or more years for their day in court.

It was just under 10 years ago that a 140 page report of the Department of Justice’s Office of the Inspector General found similar wrongdoing in the hiring of IJs under the Bush administration. https://oig.justice.gov/special/s0807/final.pdf That report noted at p.135 that “both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.” That investigation found that such policy and law had been violated, and included recommendations to prevent a future recurrence of such improper conduct. Then as now, the slowdown in IJ hiring caused by the improper political screening of candidates compromised EOIR’s mission (in the words of the agency’s Director at the time, at p.96), and contributed to the growing case backlog.

In another employment-related development that has drawn little public notice, the Department of Justice on May 17 posted a hiring ad for 38 vacant staff attorney positions at the BIA. The twist is that for the first time, the positions were advertised as being entry level grade positions with no potential for promotion.

EOIR Director James McHenry had hinted since his appointment that he believed BIA attorney positions should be downgraded. There is something disingenuous about such statement. I can think of at least three immigration judges who were appointed to the bench directly from their positions as non-supervisory BIA staff attorneys. Two of the four temporary BIA Board Members at present are long-term BIA staff attorneys. The present BIA chairperson, David Neal, previously served as a Board staff attorney for 5 years, a position that apparently qualified him to directly become chief counsel to the Senate Immigration Subcommittee. Nearly all of the BIA’s decisions, including those that are published as precedent binding on the agency and DHS, are drafted by its staff attorneys. Some of those attorneys have accumulated significant expertise in complex areas of immigration law. A number of Board staff attorneys have participated as speakers at the immigration judge training conferences.

The question thus becomes: how are experienced attorneys who are deemed qualified to move directly into immigration judge and BIA Board Member positions, to craft precedent decisions and to train immigration judges only deemed to be entry level, non-career path employees?

There has been much attention paid to the nearly 700,000 cases pending before the nation’s immigration courts. As the agency moves to hire more judges and limit continuances, and recently had its power to administrative close cases revoked by the AG, the number and pace of cases appealed to the BIA will speed up significantly. It would seem like a good time for the BIA to be staffed with knowledgeable and experienced staff attorneys. Instead, the agency’s move essentially turns new BIA attorney hires into short-term law clerks. New attorneys undergo a full year of legal training to bring them up to speed to handle the high volume and variety of complex legal issues arising on appeal. However, attorneys are unlikely to remain in such positions for much more than a year without the possibility of promotion.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

As an Attorney-Manager and Government Senior Executive, I always had high expectations for the professionals working for me, which they achieved in the vast, vast majority of cases. My experience told me that everyone had their strengths and weaknesses and that it was the job of a good manager to find ways for everyone to succeed whenever possible.

If I do say so myself, I believe that I was good at finding the right “sweet spots” for folks to “be the best that they can be.” And, I’ll freely acknowledge getting some of my ideas from watching the late “Legacy INS” General Counsel Mike Inman operate. Whatever else one might think or say about “Iron Mike,” he did have an “eye for talent.” He also could take people who seemed to be “bouncing along” in their careers and position them to be outsized contributors and “superstars,” in his lingo.

At the same time, I saw the importance of insuring that folks working for me had the maximum number of career advancement opportunities and a fair chance to be recognized and move up the “career ladder.” Indeed, former EOIR Director Anthony “Tony” Moscato and I finished the work begun by my predecessor as BIA Chair, the late Judge David Milhollan and his then “Chief Attorney Advisor” now retired BIA Appellate Immigration Judge David B. Holmes in creating a career ladder where all qualified BIA Attorney Advisers could eventually reach the full DOJ career level for attorneys of GS-15.

Additionally, with the support of Tony and then Attorney General Janet Reno, I created various supervisory and leadership positions for senior Attorney Advisors that allowed them to assist in the management of the BIA staff while preparing themselves for other senior-level careers both at EOIR and elsewhere. Indeed a significant number of todays Appellate Immigration Judges, Immigration Judges, and senior EOIR managers, and managers in other divisions of the DOJ got their start in management at the BIA.

Disappointingly, under Sessions, EOIR appears to have joined the fight against the career civil service by “dumbing down” in various ways both the Immigration Judge and BIA Attorney Advisor position by making them less attractive to those seeking a career in public service.

I recently was discussing the politicized hiring process with a retired colleague who had worked elsewhere in the DOJ but had knowledge of both the past and current problems at EOIR. She said “It’s happening again, Paul. Just wait till it all comes out — ‘you ain’t seen nothin’ yet!'”

It’s time for EOIR to be removed from the DOJ and its politicized policies and practices! In this instance, “past performance predicts future results!” And, that’s not a good thing!

PWS

05-28-18

READ MY SPEECH TO THE ABA COMMISSION ON IMMIGRATION: “CARICATURE OF JUSTICE: Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts!”

CARICATURE OF JUSTICE:

Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts

ABA COMMISISON ON IMMIGRATION

WASHINGTON, D.C.

MAY 4, 2018

Thank you, Madam Moderator. I am pleased to be on this distinguished panel. And, I am particularly delighted that EOIR Director James McHenry has joined us.

Clearly, this isn’t about Director McHenry, who by my calculations was still in law school when the wheels began coming off the EOIR wagon. Also, as a former Senior Executive in past Administrations of both parties, I’m familiar with being sent out to “defend the party line” which sometimes proved to be “mission impossible.”

For me, no more disclaimers, no more bureaucratic BS, no more sugar coating, no more “party lines.” I’m going to “tell it like it is” and what you need to do to reestablish Due Processand fundamental fairnessas the only acceptable missionof the United States Immigration Courts.

It’s still early in the morning, but as Toby Keith would say, “It’s me, baby, with your wakeup call!”

Nobody, not even Director McHenry, can fix thissystem while it remains under the control of the DOJ. The support, meaningful participation, and ideas of the judges and staff who work within it and the public,particularly the migrants and their lawyers, who rely on it, is absolutely essential.

But, the current powers that be at the DOJ have effectively excludedthe real stakeholdersfrom the process. Worse,they have blamed the victims,you, the stakeholders, for the very problems created by political meddling at the DOJ. We’re on a path “designed and destined for failure.”

The decline of the Due Process mission at EOIR spans several Administrations. But, recently, it has accelerated into freefallas the backlog largely created by “Aimless Docket Reshuffling” (“ADR”) by political officials at the DOJ over the past several Administrations and chronic understaffing have stripped U.S. Immigration Judges of all effective control over their dockets, made them appear feckless, and undermined public confidence in the fairness, independence, and commitment to individual Due Process of our Immigration Courts.

The Due Process Clause of the Fifth Amendment is there for one, and only one reason. To protect all individuals in the United States, not just citizens, from abuses by the Federal Government. In simple terms, it protects individuals appearing in Immigration Court from overstepping and overzealous enforcement actions by the DHS. It is notthere to insure either maximum removals by the DHS or satisfaction of all DHS enforcement goals.

Nor is it there to “send messages” – other than the message that individuals arriving in the United States regardless of statuswill be treated fairly and humanely. It serves solely to protect the rights of the individual, and definitelynotto fulfill the political agenda of any particular Administration.

The “EOIR vision” which a group of us in Senior Management developed under the late Director Kevin Rooney was to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that noble vision is now dead and buried.

In fact, when I mentioned it to a recently hired EOIR attorney just prior to my retirement in 2016, she looked at me as if I were from outer space. Indeed, nobody in his or her right mind would seriously suggestthat today’s Immigration Courts are on track to meet that vision or that it motivates the actions of today’s DOJ.

No, instead, the Department of Justice’s ever-changing priorities, Aimless Docket Reshuffling, and morbid fascinationwith increased immigration detention as a means of deterrence have turned our Immigration Court system back into a tool of DHS enforcement. Obviously, it is long past time for an independentU.S. Immigration Court to be established outside the Executive Branch.

I work with a group of retired colleagues on various Amicus Briefs trying to defend and restore the concept of Due Process in Immigration Court. I doubt that it’s what any of us thought we’d be doing in retirement. As one of those colleagues recently said, it’s truly heartbreaking for those of us who devoted large segments of our professional lives to improving Due Process and fairness in the Immigration Courts to see what has become of those concepts and how they are being mocked and trashed on a daily basis in our Immigration Court system.

Those of us watching from retirement treat each day’s EOIR news with a mixture of disbelief, disappointment, anger, and total outrage. But, it drives and inspires us to actionto halt and reverse the travesty of justice now taking place in our US Immigration Courts.

I am one of the very few living participants in the 1983 creation of EOIR when it was spun off from the “legacy INS” to create judicial independence and better court administration during the Reagan Administration.

And, I can assure you that the Reagan Administration was not filled with “knee jerk liberal.” No, those were tough, but fair minded and practical, law enforcement officials. The other “survivors” who come to mind are former Director and BIA Judge Tony Moscato and then Associate Attorney General Rudy Giuliani, whom I understand is “otherwise occupied” these days.

Sadly, although EOIR appeared to have prospered for a period of time after its creation, it has now regressedto essentially the same problematic state it was in prior to 1983: lack of actual and perceived judicial independence; a weak appellate board that fails to function as an independent judiciary promoting due process; an unwieldy structure, poor administrative support, and outdated technology; a glacial one-sided judicial selection process that effectively has eliminated private sector attorneys with actual experience in representing immigrants and asylum applicants in court from the 21^stCentury Immigration Judiciary; and an overwhelming backlog with no end in sight.

Only now, the backlog is multiples of what it was back in 1983, nearing an astounding 700,000 cases! And additional problemshave arisen, including grotesque overuse of detention courts in obscure, inappropriate locations to discourage representation and inhibit individuals from fully exercising their legal rights; a lack of pro bono and low bono attorney resources; and new unprecedented levelsof open disdain and disrespect by Administration officials outside EOIR, at the DOJ, for the two groups that are keeping Due Process afloat in the Immigration Courts: private attorneys, particularly those of you who are pro bono and low bono attorneys representing vulnerable asylum applicants and the Immigration Judgesthemselves, who are demeaned by arrogant, ignorant officials in the DOJ who couldn’t do an Immigration Judge’s job if their lives depended on it.

But, wait, and I can’t make this stuff up, folks, it gets even worse! According to recent news reports, the DOJ is actually looking for ways to artificially “jack up” the backlog to over 1,000,000 cases – you heard me, one million cases– almost overnight. They can do this by taking cases that were properly “administratively closed” and removed from the Courts’ already overwhelmed “active dockets” and adding them to the backlog.

Administratively closed cases involve individuals who probably never should have been in proceedings in the first place – DACA recipients, TPS recipients, those waiting in line for U visa numbers, potential legal immigrants with applications pending at USCIS, and long-time law-abiding residents who work, pay taxes, are integrated into our communities, have family equities in the United States, and were therefore quite properly found to be low to non-existent “enforcement priorities” by the last Administration.

Some of you in the audience might be in one of these groups. They are your neighbors, friends, fellow-students, co-workers, fellow worshippers, employees, workmen, child care workers, and home care professionals., and other essential members of our local communities.

And you can bet, that rather than taking responsibility for this unnecessary cruelty, waste, fraud, and abuse of our court system, the DOJ will attempt to falsely shift blame to Immigration Judges and private attorneys like those of you in the audience who are engaged in the thankless job of defending migrants in the toxic atmosphere intentionally created by this Administration and its antics.

Expose this scam! Don’t let the DOJ get away with this type of dishonest and outrageous conduct aimed at destroying our Immigration Court system while disingenuously directing the blame elsewhere.

Basically, respondents’ attorneys and Immigration Judges have been reduced to the role of “legalgerbilson an ever faster moving treadmill” governed by the unrestrained whims and indefensible, inhumane “terror creating” so-called “strategies” of the DHS enforcement authorities. And, instead of supportingour Immigration Judges in their exercise of judicial independence and unbiased decision-making and nurturing and enhancing the role of the private attorneys, the DOJ, inexcusably, during this Administration has undercut them in every possible way.

For the last 16 years politicians of both parties have largely stood by and watched the unfolding Due Process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration, at levels over which Director McHenry has no realistic control, will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

Our Constitution and our protection laws, which adhere to international treaties that we have signed, are not“loopholes.” Treating migrants fairly, humanely, and in accordance with the rule of law does notshow “weakness.” It shows our strengthas a nation.

There is a bogus narrative being spread by this Administration that refugees who are fleeing for their lives from dangerous situations in the Northern Triangle, that we had a hand in creating, are mere “economic migrants” not deserving of our protection. Untrue!

Migrants should be given a reasonable chance to get lawyers; an opportunity to prepare, document, and present their cases in a non-coercive setting; access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws in the generous spirit of the Supreme Court’s decision in Cardoza-Fonsecaand the BIA’s oft cited but seldom followed precedent in Matter of Mogharrabi; and a fair decision, preferably in writing, without being placed under duress by unnecessary, wasteful, inhumane detention and separation of families. This Court System should not be run by a Cabinet Member who has already announced his predetermination of the preferred outcomes and his total disdain for migrants and their lawful representatives.

Once fully documented, many of these cases probably could be granted either as asylum cases or as withholding of removal cases under the CAT in short hearings or by stipulation if the law were applied in a fair and unbiased manner. Those who don’t qualify for protection after a fair and impartial adjudication, and a chance to appeal administratively and to the Article III Courts, can be returned under the law.

This Administration and particularly this DOJ depend on individuals notbeing competently represented and therefore not being able to assert their rights to either legal status or fair treatment. But, there are still real,truly independent Article III Courts out there that can intervene and put an end to this “deportation railroad” and its trampling on our Constitution, our laws, our values, and our dignity as human beings. For, friends, if we are unwilling to stand up against tyranny and protect the legal and Constitutional rights of the most vulnerable among us, like asylum seekers, then our ownrights and liberties as Americans mean nothing!

I urge each of youin this audience to join the “New Due Process Army” and stand upfor “truth, justice, and the American way” in our failing, misused, and politically abused United States Immigration Courts and to continue the fight, for years or decades if necessary, until this systemfinally is forced to deliveron its noble but unfulfilled promise of “being the world’s best tribunals, guaranteeing fairness and due process for all.” Harm to one is harm to all! Due process forever!

Thank you, Madam Moderator, I yield back my time.

(04-04-18)

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ADMISSION: Notwithstanding the last sentence, I went “overtime,” so there actually was no time to “yield back.”

PWS

05-04-18

HEIDI BOAS @ WILKES LEGAL: Following A Colossal 14-Year Battle, The U.S. Asylum System Saved Rodi Alvarado’s Life – Can Jeff Sessions Undo This Critically Needed, Life-Saving Protection For Thousands Of Women & Children Like Rodi With A Single Stroke Of His Pen?

Issue Spotlight:

Will America Shut Its Doors to Immigrant Survivors of Domestic Violence?

by Heidi Boas, Immigration Attorney

Wilkes Legal, LLC

April 5, 2018

Will the U.S. continue to offer asylum to

immigrant survivors of domestic violence

like Rodi Alvarado Peña?

In January 2018, Wilkes Legal won asylum for an immigrant mother and her children who escaped over a decade of extreme physical, psychological, and sexual abuse that sent our client to the hospital and left one of her children with a permanent physical impairment. Because our client’s domestic partner was a high-ranking military officer in their home country, her pleas for help from government authorities fell on deaf ears, causing her to flee the country for her safety. In recent years, the United States has offered asylum protection to domestic violence survivors like this client. A recent move by Attorney General Jeff Sessions, however, could soon limit or end the ability of domestic violence survivors to receive asylum protection in the United States.

Domestic violence has long been a contentious issue in asylum law. More than two decades ago, advocates began a 14-year legal battle to win asylum for Rodi Alvarado Peña, a Guatemalan woman who suffered a decade of brutal violence at the hands of her husband. Even though Ms. Alvarado repeatedly sought help from the Guatemalan police and courts, the Guatemalan authorities refused to intervene and protect her. When Ms. Alvarado tried to escape from her husband, he tracked her down and beat her unconscious. Ms. Alvarado ultimately fled to the United States and became the subject of a controversial, high profile immigration court case, as multiple administrations considered whether to grant asylum to women whose countries fail to protect them from domestic violence. Ms. Alvarado ultimately received asylum in 2009, but her case did not establish legal precedent that could help other asylum-seekers fleeing domestic violence.

In 2014, the Board of Immigration Appeals (BIA) finally issued a precedential decision recognizing domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA granted asylum to a Guatemalan woman whose husband broke her nose, repeatedly raped her, and burned her with paint thinner. The BIA recognized “married women in Guatemala who are unable to leave their relationship” as a group that can qualify for asylum. This landmark case opened the doors to protection for other immigrant survivors of domestic violence whose countries fail to protect them from abuse.

While the United States has made great strides in offering protection to immigrant survivors of domestic violence, Attorney General Jeff Sessions recently took a step that could potentially undo decades of forward progress. As attorney general, Sessions has the authority to refer immigration court cases to himself, overturn decisions of the Board of Immigration Appeals, and set precedent. Last month, Sessions referred an immigration case to himself involving a survivor of domestic violence from El Salvador. If Sessions rules against this woman, he would begin reshaping asylum law for abuse survivors and could potentially shut the doors to countless victims seeking protection in the United States.

In the case under Sessions’ review, a Salvadoran women referred to as A.B. suffered years of domestic violence at the hands of her ex-husband in El Salvador. Even though A.B. separated from her husband and eventually divorced him, her ex-husband returned three years after their separation and raped her. A.B. also testified to receiving threats from her ex-husband’s brother, who is a police officer, and his friend, who told the woman that her ex-husband would kill her and he would help dispose of her body. Although an Immigration Judge denied A.B.’s asylum case, the Board of Immigrant Appeals disagreed with the judge’s ruling and sent the case back to the judge to reconsider his decision. The Immigration Judge again refused to grant asylum to A.B., however, despite the BIA’s precedent decision in Matter of A-R-C-G-, due to other more recent decisions in his jurisdiction.

Now that Sessions has stepped in to review A.B.’s case, he has the authority to determine whether she should be granted asylum. If Sessions denies her asylum case, his decision could have a far-reaching impact, setting precedent that would make it more difficult for other immigrant survivors of domestic violence to qualify for asylum in the future. If Session limits asylum eligibility for these survivors, he will roll back decades of progress in asylum law and close the doors to immigrant victims of abuse who have nowhere else to turn.

Wilkes Legal stands with immigrant survivors of domestic violence and urges Sessions to uphold the BIA’s current precedent, keeping America’s doors open to victims of domestic abuse whose governments fail to protect them.

Visit our website, follow us on Facebook or Twitter, or call our office at (301) 576-0491 to learn more about Wilkes Legal, LLC.

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From his actions to date, Sessions appears to be up to no good. But, by now the “A-R-C-G-/R-A- principles” are deeply ingrained in U.S. protection law as interpreted by the Article III Federal Courts.

I predict that an attempt by Sessions to undo A-R-C-G- protections will be heavy-handed, blatantly biased, and thinly reasoned as have been all of his transparently biased reversals of established legal positions to date.

It’s therefore likely to suffer a fate of emphatic rejection by the Article IIIs much like what happened when Attorney General Michael Mukasey tried to undo years of established legal precedent about proof of crimes involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), rev’d & remanded, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015).

I’m hardly a “Charter Member of the Mike Mukasey Fan Club.” His poor stewardship over the U.S. Immigration Court system is at least partially responsible for today’s inexcusable mess in our Immigration Courts.

Nevertheless, before becoming Attorney General, Mukasey was a well-respected U.S. District Judge. He’s 10X the lawyer as Sessions! Sessions’s lack of any discernible legal skills, integrity, humanity, and judgement probably bodes well for the “Good Guys” in the long run.

But, that doesn’t mean that there won’t be unnecessary and unconscionable suffering. Sessions is a bully at heart who relies on the fact that the majority of individuals in the U.S. Immigration Court system are unrepresented and therefore unable to defend themselves against his racist/xenophobic policies.

I’m proud to be one of the “Gang of Five” Appellate Immigration Judges (“Board Members” ) who dissented from the BIA’s original outrageously incorrect decision in Matter of R-A-, 22 I&N Dec. 908 (BIA 1999), vacated, Matter of R-A-, 22 I&N Dec. 908 (A.G. 2001) that reversed a clearly correct grant of asylum to Rodi Alvarado. The other dissenters were Judges John Guendelsberger (who wrote the dissent), Lory Diana Rosenberg, Gustavo D. Villageliu, and Anthony C. Moscato.

Not coincidentally, all of us except for Judge Moscato were removed and “exiled” from the BIA during the “Ashcroft Purge of 2003” for the transgression of doing our jobs conscientiously and standing up for a correct interpretation of the asylum law. So much for the “facade of quasi-judicial independence at the BIA.” (Credit to Peter Levinson). And, that’s before the current “descent into the abyss” brought about by Sessions!

We need an independent Article I U.S. Immigration Court now!

PWS

04-05-18

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic problems have resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

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Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!

This Congress, which “can barely even tie its own shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!

Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for sending me the AILA Resolution.

PWS

02-07-18

HON. JEFFREY CHASE: Matter of W-Y-C- & H-O-B- & The Unresolved Tension In Asylum Adjudication! – Plus My Added Commentary On EOIR Training!

https://www.jeffreyschase.com/blog/2018/2/4/the-proper-role-of-immigration-judges-as-asylum-adjudicators

“Feb 4 The Proper Role of Immigration Judges as Asylum Adjudicators

I would like to expand on the topic raised in my response to the BIA’s recent precedent decision in Matter of W-Y-C- & H-O-B-. In the U.S. system, what tensions exist between an immigration judge’s role as an independent judge within an adversarial system, and his or her overlapping role as an adjudicator of asylum claims?

As we all know, the 1980 Refugee Act was enacted to put the U.S. in compliance with the 1951 Convention on the Status of Refugees (to which the U.S. acceded through the 1967 Protocol). For that reason, numerous courts through the years have found the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to provide “significant guidance in construing the Protocol” and a useful instrument “in giving content to the obligations the Protocol establishes,” as the U.S. Supreme Court stated in INS v. Cardoza-Fonseca. The BIA has referenced the UNHCR Handbook in at least ten precedent decisions, as have numerous circuit courts.

Paragraphs 66 and 67 of the Handbook state the following:

66. In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.

67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect… (emphasis added.)

Not surprisingly, this approach is employed by the USCIS Asylum Office. Created in the implementation of the 1990 asylum regulations, the office’s first director, Gregg Beyer, previously worked for UNHCR for more than 12 years. The Asylum Officer Basic Training Manual (“AOBTM”) on the topic of nexus states that although the applicant bears the burden of proving nexus, the asylum officer has an affirmative duty to elicit all relevant information, and “should fully explore the motivations of any persecutor involved in the case.” The AOBTC therefore directs the asylum officer to “make reasonable inferences, keeping in mind the difficulty, in many cases, of establishing with precision a persecutor’s motives.”

The AOBTC also cites the 1988 BIA precedent decision in Matter of Fuentes.1 In that case, the Board held that “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible. However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of” a protected ground.

In Canada, the Immigration and Refugee Board takes the view that “it is for the Refugee Division to determine the ground, if any, applicable to the claimant’s fear of persecution.” The U.S. is unusual, if not unique, among western nations in not also delegating this responsibility to immigration judges. Also, note that the IRB references the “Refugee Division;” like many countries, Canada’s equivalent of immigration courts is divided into immigration and refugee divisions, in recognition of the special obligations and knowledge that asylum determinations require. The U.S. immigration court system does not have a separate refugee determination division; asylum claims are heard by the same judges and under the same conditions as all other types of immigration cases. Furthermore, as noted above, U.S. immigration judges hear cases in an adversarial setting, in which judges assume a passive, neutral role.

The role of asylum adjudicator carries responsibilities that are at odds with the the role of neutral arbiter. Asylum adjudicators are required to share the burden of documenting the asylum claim; the UNHCR Handbook at para. 196 states that “in some cases, it may be for the examiner to use all of the means at his disposal to produce the necessary evidence in support of the application.”2 And, as discussed above, once the facts are ascertained, it is the adjudicator who should identify the reasons for the feared persecution and determine if such reasons bear a nexus to a protected ground.

During the Department of Justice’s asylum reform discussions in the early 1990s, Gregg Beyer stated that the idea of separate asylum judges was considered, but ultimately rejected. To my knowledge, EOIR has never conducted an in-depth analysis of the conflicts between the judge’s responsibilities as an asylum adjudicator and his or her role as a neutral arbiter in adversarial proceedings. I discussed the Board’s incorrect holding in Matter of W-Y-C- & H-O-B- under which genuine refugees may be ordered returned to countries where they will face persecution because the asylum applicants lacked the sophistication to properly delineate a particular social group, a complex legal exercise that many immigration attorneys (and immigration judges) are unable to do. The problem also extends to other protected grounds. Would an unrepresented asylum applicant (who might be a child) understand what an imputed political opinion is? Would most asylum applicants be able to explain that actions viewed as resisting the authority of a third-generation gang such as MS-13 might constitute a political opinion? Regulations should be enacted making it the responsibility of immigration judges to consider these questions. Additionally, immigration judges, BIA Board Members and staff attorneys should be required to undergo specialized training to enable them to identify and properly analyze these issues.

Notes:

1. 19 I&N Dec. 658 (BIA 1988).

2. See also the BIA’s precedent decision in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which I have referenced in other articles.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

INSIDE EOIR: THE REEMERGENCE OF “THE GREAT SANTORINI” – Could Judge Chris Santoro’s Reputed Takeover Of The Law Library and Training Functions At Headquarters Be Some Good News For A Beleaguered Court System & Its “Customers?”

It’s been a tough year for EOIR, the agency of the U.S. Department of Justice that oversees the U.S. Immigration Court system. (Although, admittedly, probably not as tough for EOIR as for the many individuals forced to count on EOIR for potentially life-saving due process who were short-changed and the often disrespected attorneys representing, or trying to represent, them.)

The backlog has continued to mushroom to more than 640,000 cases with no end in sight; new Immigration Judge hiring and courtroom expansion continued to lag; e-filing remains a pipe dream; recently retired former Director and BIA Chair Juan Osuna died suddenly and unexpectedly; and a new Attorney General took office who apparently views the Immigration Courts not as a “real” judiciary charged with acting independently to protect the due process and other legal rights of migrants, but rather as a mere “whistle stop on the DHS deportation express.”

But, at least some good news could be in the offing. Reportedly, Judge Christopher A. “The Great Santorini” Santoro, who currently serves as the Acting Chief of Staff for the Acting Director of EOIR, Judge James McHenry, will assume overall responsibility for the BIA’s Law Library (which includes the highly-regarded “Virtual Law Library”) and the Judicial Training Program. Both important functions will be “relocated” to the Office of Policy in the Director’s Office.

Judge Santoro served as the Assistant Chief Immigration Judge for the Arlington Immigration Court during some of my tenure there and later went on to be an Acting Deputy Chief Immigration Judge before mysteriously disappearing for a time into the bowels of the EOIR bureaucracy (becoming essentially a “bureaucratic non-person” – off the organizational “depth charts”). He subsequently was “rehabilitated” and reappeared last spring when Acting Director McHenry appointed him Acting Chief of Staff.

Judge Santoro has a stellar reputation for hard work, efficiency, sound administration, and creative problem solving. In Arlington, he was viewed as a “trial judges’ judge” who devoted himself to supporting the judges and resolving problems while not interfering with the things that were working.

He also provided unprecedented feedback and guidance about what was “really happening at The Tower” – normally a “dark hole” for field judges. During my illness, he, along with my colleagues Judge Roxanne Hladylowicz and Judge Robert Owens, pitched in and handled some of my Master Calendars so they didn’t have to be rescheduled. I always found him to be totally supportive and responsive, as well as a great colleague. He cared deeply about and paid attention to the hard-working and underappreciated court staff. He is known as a manager who in the words of one former employee will likely “put competent people in charge and let them do their jobs.”

The Law Library has been under the outstanding leadership of Head Law Librarian Karen L. Drumond dating back to my tenure as BIA Chair (1995-2001). The upgrading of the Law Library, hiring of additional staff, and the creation of the Virtual Law Library were carried out with the encouragement and enthusiastic support of then-Director (and later BIA Member) Anthony C. “Tony” Moscoto. Tony correctly envisioned changing the previously, rather ignored, BIA Law Library into a major research aid for the Immigration Judiciary as well as a help to the public and a repository for certain historical materials about the BIA and EOIR’s history.

The Virtual Law Library, in particular, has been widely acclaimed as an important research tool in the world of immigration law. I still use the public version on a regular basis and recommend it to my students and others as a great resource!

Assistant Chief Judge Jack Weil has very capably managed the EOIR Judicial Training Program for years. However, despite Judge Weil’s best efforts, training too often fell victim to budget shortages or other bureaucratic impediments. Unfortunately, it has been, quite incorrectly, considered a “low priority” within the bureaucracy.

Immigration Judge Training hit bottom this past year when the incoming Administration without explanation cancelled critical in–person nationwide training for Immigrating Judges — the only real CLE and training that most Judges receive during the year. This was notwithstanding the arrival of many newly hired Immigration Judges who have never had a chance to attend a nationwide training conference or, indeed, even to meet the vast majority of their judicial colleagues!

I know that Judge Santoro takes legal research, professional excellence, fairness, and training very seriously. Indeed, while at the Office of Chief Immigration Judge he “directed” several “new judge training videos” with an all-star cast including some of our multi-talented former Arlington Judicial Law Clerks.

Generally, I interpret bringing the Law Library and Judicial Training functions under the Director’s Office and selecting a “total judicial management pro” like Judge Santoro to lead them as a positive sign for EOIR and the immigration world. Hopefully, the Law Library and Judicial Training will prosper and expand under Judge Santoro’s leadership to meet the challenges of the 21^st Century.

“Job One” at EOIR is NOT about removing migrants at record paces, denying more asylum applications, or deterring future migrants. No, it’s all about fairness, scholarship, timeliness, respect, teamwork, and delivering Due Process and even-handed justice to some of the most vulnerable individuals in America.

Currently, EOIR is failing to discharge its critical duties to guarantee fairness and due process in the manner one would expect from one of the largest, perhaps the largest, and most important Federal Court systems. Hopefully, Judge Santoro will be part of the solution to the problems facing EOIR and those whose lives and futures depend on it.

PWS

11-29-17

MORE IMMIGRATION COURT INSANITY! — DHS REPORTEDLY STRIPS OWN ATTORNEYS OF AUTHORITY TO NEGOTIATE BONDS, WAIVE APPEALS!

Sources from several areas of the country have informed me that there is a new, of course unpublished and unannounced, policy at DHS prohibiting ICE Assistant Chief Counsel who represent the agency in U.S. Immigraton Court from either negotiating bonds with private counsel or waiving appeals from U.S. Immigraton Judge decisions ordering release on bond.

This is just further evidence of the consequences of having ignorant proponents of “gonzo enforcement” in charge of both the DHS and the U.S. Immigraton Courts at the Department of Justice.

First, negotiated bonds are one of the key ways of making bond dockets move forward in an efficient manner in the U.S. Immigraton Courts. Bonds are initially sent by ICE Enforcement personnel, often on an arbitrary or rote basis. Without authority to negotiate bonds, particularly in advance, each bond hearing will take longer. Moreover, since bond cases take precedence in Immigraton Courts, longer bond dockets will further limit the already inadequate court time for hearing the merits of removal cases. With a growing backlog of over 600,000 cases, this appears to be an intentional effort to undermine due process in the Immigration Courts. Typically, when I served at the Arlington Immigration Court, at my encouragement, the parties agreed on most bonds in advance and neither party appealed more than 1%-2% of my bond decisions. Indeed, discussing settlement with the Assistant Chief Counsel in advance was more or less of a prerequisite for me to redetermine a bond.

Second, appealing all bond release decisions will also overburden the already swamped Appellate Division of the U.S. Immigration Courts, the Board of Immigraton Appeals (“BIA”). As in the Immigraton Courts, bond appeal cases at the BIA take precedence and will push decisions on merits appeals further back in line.

Third, Immigraton Judges usually only prepare a bond decision (known as a “Bond Memorandum”) in cases where a bond appeal is actually taken. Since that currently happens only infrequently, the process is manageable. However, if appeals are taken in more cases, and Bond Memoranda are “priorities,” Immigration Judges will have to spend more time writing or dictating Bond Memoranda, further limiting their time to hear cases on the merits. Moreover, by making it more burdensome to release individuals on bond, the system actually creates an inappropriate bias against releasing individuals on bond.

Fourth, yielding to inappropriate pressure from the “Legacy INS,” the Clinton DOJ gave Assistant Chief Counsel regulatory authority to unilaterally stay the release of a respondent on bond under an Immigraton Judge’s order provided that: 1) the Director originally had set “no bond;” or 2) the original bond was set at $10,000 or more. That means that the DHS can effectively neuter the power of the Immigraton Judge to release an individual on bond pending the merits hearing. By contrast, the respondent has no right to a stay pending a decision by the Immigraton Judge not to allow release, unless the BIA specifically grants a stay (which almost never happens in my experience).

Fifth, unlike petitions to review final orders of removal, which must be filed with the appropriate U.S. Court of Appeals at the conclusion of all proceedings, judicial review of bond decisions is sought in the U.S. District Courts. More decisions denying bonds have the potential to create new workload issues for the U.S. District Court.

Fifth, the individuals in the DHS most with the most knowledge and expertise in how the U.S. Immigration Courts work are the Assistant Chief Counsel. Stripping them of their authority to control dockets and settle cases, authority possessed and exercised by every other prosecutor in America, is both dumb and insulting. In what other system do the “cops” have the authority to overrule the U.S. Attorney, the District Attorney, or the State’s Attorney on matters they are prosecuting in court? It also makes the Assistant Chief Counsel job less professional and less attractive for talented lawyers.

In short, the Trump Administration is making a concerted attack on both common sense and due process in the U.S. Immigration Court system. The results are not only unfair, but are wasting taxpayer funds and hampering the already impeded functioning of the U.S. Immigraton Court system. Unless or until the Article III Federal Courts are willing to step in and put an end to this nonsense, the quagmire in the U.S. Immigration Courts will become deeper and our overall U.S. justice system will continue to falter.

We need an independent Article I Immigraton Court now!

PWS

09-23-17

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:

FOR IMMEDIATE RELEASE

Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

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

Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

PWS

07-06-17

Yup, it’s a great settlement! But, only for those in the CDCA or who don’t understand how totally screwed up, unfair, directionless, visionless, and out of control Garland’s “Clown Courts” 🤡 are!

🇺🇸Due Process Forever!

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