EOIR Director Judge James McHenry – Page 10

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

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

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link. I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

SCRUTINY 🔎: IG to Look Into EOIR’s “Three Ring Circus” 🤡 Operations During Pandemic! — Priscilla Alvarez Reports for CNN

https://apple.news/A_cgrTbprRN6R9noX9DJOuQ

Priscilla Alvarez reports for CNN:

The Justice Department’s inspector general is reviewing the Trump administration’s decision to keep the nation’s immigration courts open while the coronavirus swept through the United States.

The Executive Office for Immigration Review, the agency within the Justice Department that oversees the immigration court system, came under increased criticism from immigration judges, attorneys, and prosecutors for proceeding with immigration hearings despite social distancing guidelines and shelter in place orders.

Eventually, the agency postponed hearings scheduled for immigrants who are not in detention, providing some reprieve and resulting in less traffic at the court, but hearings for immigrants in detention, including children, continue to proceed.

It made incremental changes to court operations in the first weeks of the outbreak, often late at night and through Twitter, frustrating immigration judges and lawyers who repeatedly urged the agency to close courts altogether.

According to the inspector general’s website, the office will “assess EOIR’s communication to staff, parties to proceedings, and the public about immigration court operations; its use of personal protective equipment; its use of worksite flexibilities; and its ability to mitigate health risks while maintaining operations during the COVID-19 pandemic.”

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Read the rest of Priscilla’s article at the link.

Communication with the field and the public hasn’t been a strong point for EOIR in this regime. Nor has getting employee or public input before taking drastic actions been a concern. The disrespect for its own judges is graphically illustrated by EOIR’s frivolous attempt to “decertify” the National Association of Immigration Judges (“NAIJ”) when it should be getting input from them (and the public) and working cooperatively to implement “best practices.”

Past IG investigations haven’t turned out particularly well for EOIR. But, the regime has shown a spectacular capacity for “blowing off” the results of independent investigations into its conduct and following up by “punishing” the investigators without consequences for the wrongdoers.

Ironically, then, if the investigation is critical of EOIR, it could be more “career threatening” for the investigators than for the delinquent EOIR management officials carrying out the “party line.”

Due Process Forever! Clown Courts 🤡 Never!

PWS

05-07-20

DEATH IN THE GULAG⚰️: ICE Notches First Known COVID-19 Prisoner Fatality ☠️ — Advocates Have Been Warning 🆘 Of Dangers & Seeking Releases — How Many More Will Die ⚰️ in Captivity?

https://apple.news/AF9ZwIjhuQY2ICw31DyPnug

Sarah Ruiz-Grossman reports for HuffPost:

An immigrant being held in detention at an Immigration and Customs Enforcement facility in San Diego has died of COVID-19.

A 57-year-old detainee at ICE’s Otay Mesa facility, which is run by private contractor CoreCivic, died early Wednesday of complications of the coronavirus disease after being hospitalized since late April, according to San Diego County officials. This is the first reported COVID-19 death of an immigrant in ICE custody.

Carlos Ernesto Escobar Mejia was from El Salvador, according to a government report obtained by BuzzFeed News. He’d been held by ICE since January and was hospitalized April 24 after exhibiting coronavirus symptoms. He had hypertension and self-reported diabetes but was denied release from custody in mid-April by an immigration judge.

ICE and CoreCivic did not immediately respond to a request for further details.

Advocates had been warning about unsafe health conditions at the Otay Mesa detention center for weeks. The facility currently has the biggest outbreak of COVID-19 of any ICE detention center, with at least 132 immigrants and 10 ICE employees testing positive as of last week.

(CoreCivic in mid-April said it had given masks to detainees at Otay Mesa and was quarantining positive cases in “housing pods” and separating those at high medical risk.)

Of nearly 30,000 immigrants in ICE detention centers nationwide, the agency has so far tested only 1,460 for COVID-19, and more than 705 immigrants have tested positive.

Activists have been calling for the release of all people from immigration detention, warning that there is no realistic way to keep immigrants safe during a pandemic in such facilities, which have long been reported to have substandard health care and sanitation.

“This is a terrible tragedy, and it was entirely predictable and preventable,” Andrea Flores, deputy director of immigration policy at the American Civil Liberties Union, said in a statement Wednesday.

“For months, public health experts and corrections officials have warned that detention centers would be Petri dishes for the spread of COVID-19 — and a death trap for thousands of people in civil detention,” she added. “Unless ICE acts quickly to release far more people from detention, they will keep getting sick and many more will die.”

. . . .

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Read the rest of Sarah’s article at the link.

This illustrates the point recently raised by Don Kerwin at CMS in an article posted on Courtside. https://immigrationcourtside.com/2020/05/03/don-kerwin-cms-detention-should-not-be-a-death-sentence-☠%EF%B8%8F☠%EF%B8%8F⚰%EF%B8%8F⚰%EF%B8%8F/

According to Sarah’s article, this victim was denied bond by an Immigration Judge, despite exhibiting “high risk” factors in an inherently unhealthy and unsafe detention center. Judge Jeffrey Chase and I have pointed out before that a functional Immigration Court, including a BIA committed to fair and impartial justice and willing to reign in unjustified policies and poor judgment on the part of ICE, could have avoided such tragedies. https://immigrationcourtside.com/2020/04/06/hon-jeffrey-s-chase-matter-of-r-a-v-p-bond-denial-maximo-cruelty-minimal-rationality-idiotic-timing-bonus-my-monday-mini-essay-how-eoir/

But, we have just the opposite these days. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

That means that responsibility for meaningful custody review passes to the U.S. District Courts.

Why have an Immigration Court at all if it’s going to function as a mindless “rubber stamp” on DHS Enforcement driven by White Nationalist extremist politicos like Miller? If the Immigration Courts are no longer willing or able to guarantee fair and impartial adjudications, which unfortunately appears to be the case under Billy Barr, maybe all removal proceedings and bond hearings should just be held before U.S. Magistrate Judges and U.S. District Judges until Congress establishes an independent Article I Immigration Court!

Due Process 🧑🏽‍⚖️🧑🏽‍⚖️ Forever! More Deaths ⚰️ in the New American Gulag, ☠️ Never!

PWS

05-07-20

TANVI MISRA @ ROLL CALL: The BIA’s Biased Hiring Program Is As Bogus As A Three Dollar Bill — Designed To Empower White Nationalist Nation, Deny Due Process! ☠️👎🏻 — “Everyone knows that [EOIR Director James McHenry] 👺 was changing the process along the way to ensure he got the candidates he pre-selected.”

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration/

Tanvi writes for Roll Call:

. . . .

The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.

“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”

An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”

“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”

New roles

Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.

McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.

They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.

EOIR said its office first proposed that designation in 2000.

“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.

True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.

“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.

Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.

Faster hiring process

In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.

The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.

McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.

In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.

The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.

“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.

Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”

According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.

EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.

. . . .

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Read Tanvi’s full article at the link.

Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!

The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.

There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!

What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.

Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”

Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.

Even with tons of “undue deference” given to the BIA by the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.

The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”

INTERESTING HISTORICAL FOOTNOTE: The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.

Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:

NEW Roll Call article by Tanvi Misra – DOJ hiring changes may help Trump’s plan to curb immigration

AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation

AILA and the American Immigration Council Press Release, New Documents Reveal Immigration Judge Hiring Plan Designed to Stack the Courts, Prioritize Politics Over Justice

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

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

PWS

05-05-20

Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!

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

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/

Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:

April 28, 2020 HUMAN RIGHTS

Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul

The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

by Hon. Mimi Tsankov

Share this:

“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”

—Senator Sheldon Whitehouse

So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.

The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).

Whitehouse recounted a sentiment articulated previously by a host of legal community leaders for more than a decade, not the least of which was ABA President Judy Perry Martinez, who in a recent statement before the U.S. Congress explained that housing a court within a law enforcement agency has exacerbated an inherent conflict of interest undermining “the basic structural and procedural safeguards that we take for granted in other areas of our justice system.” See, Am. Bar. Assoc., 2019 Update Report: Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (Mar. 2019). As she explained, “this structural flaw leaves Immigration Judges particularly vulnerable to political pressure and interference in case management.” Martinez Testimony, supra, at 1.

It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.

One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).

An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.

Thomas Cizauskas from Flickr

Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.

These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).

. . . .

Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.

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Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩‍⚖️👍🏼

The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.

These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.

While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!

Due Process Forever! Complicit Courts & Star Chambers, Never!

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

PWS

05-02-20

“TILL DEATH ☠️⚰️ DO US PART” — EOIR CAN CONTINUE OPERATIONS DESPITE COVID-19: U.S. District Judge “Stuffs” Immigration Bar’s Pleas For Better Protections!

https://www.law.com/nationallawjournal/2020/04/28/federal-judge-says-he-cant-order-immigration-courts-to-close-over-covid-19/?kw=Federal%20Judge%20Says%20He%20Can%27t%20Order%20Immigration%20Courts%20to%20Close%20Over%20COVID-19&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20200428&utm_term=nlj&slreturn=20200328111724

Jacqueline Thomsen reports for the National Law Journal:

A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.

U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.

He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.

Nichols wrote that “the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings.” But he found the detained immigrants named in the suit do not have “an imminent in-person hearing,” and therefore lack standing.

“More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action,” Nichols wrote.

The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.

Nichols said the lawyers “fail to explain” how the policies have caused the immigrants “to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.”

He further said the immigration lawyers have failed to show that “immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings.”

. . . .

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

Those with access to the NLJ (everyone can get 3 free “non-premium” articles per month by registering) can read Jacqueline’s full article and get Judge Nichols’s full opinion at the above link.

A slight clarification of the last sentence in Jacqueline’s full article: “Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.”

Immigration Judges are “administrative judges” who work for the Attorney General. Unfortunately, they are not “Article I Judges,” which would make them a true independent judiciary.

Immigration Judges would like to be Article I Judges. Most immigration and judicial experts agree that they should be. There are a number of legislative proposals circulating to establish an independent Article Immigration Court. But, alas, notwithstanding the obvious and pressing need, Congress is nowhere close to legislating the necessary change.

So, these current blatantly unconstitutional “captive courts” operating under the DOJ will continue to stagger on, taking innocent lives and trampling due process and fundamental fairness in the process. Grimly, as I had predicted, it’s apparently going to take some actual dead bodies⚰️of migrants and perhaps their lawyers piling up on the courthouse steps to get either the Article IIIs or Congress to pay serious attention to this unfolding disaster which seems to operate just enough beneath their “radar screens” to allow them to ignore or, as in this case, paper it over.

Due Process Forever! Captive Courts Never!

PWS

04-28-20

TWO-FER: Billy Barr Assaults First & Fifth Amendments In Frivolous Attack On NAIJ — Seeks To Harass, Silence Immigration Judges’ Union For Fearlessly Speaking Out Against Demise Of Due Process, Improper Political Influence, Gross Mismanagement In America’s Most Unfair & Dysfunctional “Courts!”

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan Executive Vice President National Association of Immigration Judges (NAIJ)

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ — Judge Dorothy Harbeck Secretary/Treasurer of the NAIJ

Immigration TFL_Mar-Apr2020

Judge Amiena Khan and Judge Dorothy Harbeck (in their capacities as NAIJ Officers) write in the Federal Lawyer:

DOJ Tries to Silence the Voice of the Immigration Judges—Again!

The Second Attempt to Decertify the National Association of Immigration Judges

by Judge Amiena Khan and Judge Dorothy Harbeck

Immigration Law

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) and serves as the co-chair of the NAIJ Vulnerable Populations Committee. Judge Khan was appointed by Attorney General Eric Holder in December 2010. She is seated at the New York Immigration Court and is a member of the New York State Bar. Judge Khan is the programs chair of the FBA Immigration Law Section and is also a member of the National Association of Women Judges.

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ. She is also an adjunct professor of law at Columbia and Rutgers. She
is a fellow of the Federal Bar Foundation, is on the Executive Board of the FBA Immigration Law Section, and is a member of the bar in New Jersey and New York.

The 2019 DOJ Petition for Decertification
In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—origi

The 2019 DOJ Petition for Decertification

In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—originally certified in 1979 as the recognized representative for collective bargaining for all U.S. IJs—is a voluntary association that represents and speaks for the interests of the nation’s 440 IJs. The NAIJ was formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the immigration courts. DOJ asserts that IJs should be reclassified as “management officials.” This would mean IJs could no longer union- ize, be part of a collective bargaining unit, or speak independently.

NAIJ serves as the only voice of the IJs who cannot speak out without prior express permission of DOJ’s Executive Office for Immigration Review (EOIR).2 NAIJ serves to afford transparency and accountability. The immigration courts are not independent courts under Article I or Article III of the Constitution. They are wholly contained within DOJ. Without a union,

IJs have no protection against the politicization of the process and their decisions. Without transparency,

the integrity of the process is in jeopardy. Without a union, the IJs cannot protest policy measures, such as the imposition of quotas and performance measures; the IJs cannot contest the numerous policies enacted by EOIR that encroach upon and undermine the inde- pendent decision-making ability of the IJs; and the IJs will not be able to rally against the effective speedup of the workforce, placing due process and fundamental fairness of the proceedings at risk.

How the Process Works

The burden to show that IJs are management officials is on the moving party (i.e., DOJ). The FLRA regional director (RD) has opened an investigation into the

NAIJ, seeking information about its responsibilities. DOJ can submit factual and legal arguments in support of its petition. The RD can then issue a decision or request a hearing to solicit more information. Either party can appeal the RD’s decision to the full FLRA board.

The Unsuccessful 2000 Attempt to Decertify

the Immigration Judges’ Union

This current effort follows a similar, and unsuccessful, strategy pursued by DOJ to decertify the immigration judges’ union approximately 20 years ago. In Septem- ber 2000, the FLRA’s RD rejected DOJ’s argument, and the full FLRA upheld the RD’s decision on appeal. In that prior decertification attempt,3 the FLRA reject- ed DOJ’s argument that IJs make policy through the issuance of decisions, noting that the trial court level IJs do not set precedent and that their rulings are often appealed and reviewed. The FLRA also said that the immigration court system was established specifically so that IJs do not maintain any management duties to enable them to focus on hearings.

The FLRA also ruled that there is a distinct differ- ence between the trial level IJs and the appellate level Board of Immigration Appeals (BIA) members.4 The description of the duties of the IJ were described in the 2000 decertification attempt:

The daily routine of an Immigration Judge involves hearing and deciding cases that arise from the operation of the INS.5 A court’s juris- diction to decide these cases is determined at the time a case is filed. After filing, the cases are randomly assigned by the court administrator to an individual Judge and placed on a Judge’s calendar on his or her master calendar day. At that time, the Judge hears presentations from the parties and their attorneys, identifies the is- sues, and advises individuals as to their right to

March/April 2020 • THE FEDERAL LAWYER • 9

representation. The Judge also sets time frames and briefing schedules, as well as the date for trial.6

The nature of the IJs’ decisions and their position in the hierarchy of binding the EOIR was also set forth:

During a trial, the parties are represented by counsel and the rules of evidence are observed. Thereafter, in arriving at their decisions, Immigration Judges are required to apply immigra- tion statutes, applicable regulations, published decisions of the Board of Immigration Appeals and federal appellate courts, and other foreign and state laws. After the trial, the Judge issues his or her decision, almost always orally, and advises the parties of their appeal rights. Oral decisions are not tran- scribed unless they are appealed; are not published; and are final and binding only with respect to the parties to the case. With limited exception, decisions of the Immigration Judges may be appealed to the Board of Immigration Appeals and review of their decisions is de novo. Certain cases may also be appealed to the appropriate U.S. circuit court.7

Citing its precedential case on the managerial status of BIA members (hereinafter “the BIA Management Case”),8 the FLRA specifically stated that the BIA appellate judges were management officials within the meaning of section 7103(a)(11) of the statute and, therefore, could not be included in the existing bargaining unit. In particular, it concluded that “the incumbent Board Member directly influences activity policy through his participation in the interpreta- tion of immigration laws and the issuance of decisions and, thereby, meets the definition of a management official set forth in section 7103(a)(11) of the Statute.”9

In the 2000 decertification attempt, the RD applied the BIA Management Case and concluded that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are

not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review.”10 The RD accordingly concluded that the decisions of the judges do not in- fluence and determine the Agency’s immigration policy, in contrast to the decisions of the BIA.

The FLRA concurred that the RD’s definition of a management official is defined as “an individual employed by an agency in a posi- tion the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”11

Critically, the full FLRA also found that management officials are individuals who: “(1) create, establish or prescribe general princi- ples, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agen- cy; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency.”12

The FLRA distinguished the trial court IJs from the BIA appellate judges by specifically holding that IJs do not “make policy through the issuance of their decisions … that in arriving at their decisions, Immigration Judges are required to apply immigration laws and reg- ulations, that their decisions are not published and do not constitute precedent.” Finally, the RD observed that the decisions are binding only on the parties to the case, are “routinely” appealed, and are subject to de novo review.13 There is no difference in this now.

The FLRA specifically agreed with the RD’s rejection of the EOIR’s claims that “the sheer volume of decisions issued by the [immigration] Judges and the finality of their decisions, unless they are appealed,” affect the EOIR’s policy. This is because “no matter the volume of decisions issued, or number of appeals filed, the fact remains that when an Immigration Judge issues a decision [,] he or she is applying and following established Agency law and policy.”14 Again, there is no difference in this now.

While IJs have some authority to control practice in their own courtrooms, they have no authority to set overall policy as to how the courts as a whole will operate. Nor, critically, do they have the authority to direct or commit the EOIR to any policy or course of action. The IJs are highly trained professionals with the extremely important job of adjudicating cases.15 This organizational structure and supervisory delegation was established specifically so that the IJs are unencumbered by any supervisory and management obligations and are free to concentrate on hearings.16 Aspirationally, this is still the position of the IJs.

. . . .

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

Read the rest of the article at the link. Many thanks to Judge Khan and Judge Harbeck for courageously speaking out and informing us in such a well-documented and scholarly manner.

It’s disgraceful that political leaders who are supposed to be committed to our Constitution and the rule of law instead misuse government funds and abuse their authority to cover up their wrongdoing and mismanagement. In a functional government, Barr and his toadies would be facing impeachment or referral for criminal investigation from Congress for their abuses of authority and attacks on our Constitution. Most certainly, a competent Congress would long ago have removed EOIR from the clutches of the DOJ politicos and placed it where it belongs: as an independent court system under either Article I or Article III.

Due Process Forever!

PWS

04-23-20

🏴‍☠️🆘 AMERICAN NIGHTMARE: THIS DEADLY ☠️🤮 “CLOWN SHOW” 🤡 IS A “COURT” SYSTEM? — You’ve GOT To Be Kidding! — “’Everyone feels the message is, nobody cares if you die as long as we get our numbers,’ said one worker in the office. . . . ‘I feel like half the time, I’m working on Trump’s reelection,’ said an employee in the office who spoke anonymously because of concerns about retaliation. ‘This is just a piece for him to tout when reelection time comes up about how much he’s getting done.’” — Politico’s Betsy Woodruff Swan Takes Us Inside “HQ” In America’s Most Morally Corrupt Court System, Where “Trumpian” Contempt For Due Process & Human Lives ☠️ Extends To Its Own Employees, Many Of Them Lower-Paid Clerical Staff!

https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075

Betsy Woodruff Swan reports for Politico:

The union for lawyers and support staff who handle Justice Department immigration appeals says their office’s working conditions put workers’ lives in danger. And employees in the DOJ office handling those immigration appeals said many suspect it’s because the department prioritizes high deportation numbers over worker safety.

“I feel like half the time, I’m working on Trump’s reelection,” said an employee in the office who spoke anonymously because of concerns about retaliation. “This is just a piece for him to tout when reelection time comes up about how much he’s getting done.”

It’s an accusation a spokesperson for the office vehemently denied. But the conflict is no longer being kept in the DOJ family; the president of that union recently filed a complaint with the Occupational Safety and Health Administration (OSHA), saying management requires too many people to come into the office, putting workers at risk of contracting Covid-19, the sickness caused by the novel coronavirus. Concerns in the office about worker safety were first reported by Government Executive.

At issue are working conditions in DOJ’s Executive Office for Immigration Review (EOIR). The office oversees America’s immigration courts––which are part of the Justice Department––and lawyers there handle appeals from immigrants fighting deportation orders. Those courts face a mammoth backlog of more than one million cases, by Syracuse University’s count. Despite hiring more immigration judges, the backlog has doubled under the Trump administration.

EOIR leaders have maximized how much telework employees there can do, the spokesperson said, adding that the office “takes the safety, health, and well-being of its employees very seriously.”

But the OSHA complaint, which Politico reviewed, says the office is violating a federal law mandating workplaces be free of “hazards that are causing or are likely to cause death or serious physical harm.”

“The agency’s actions described below are proliferating the spread of a known and deadly contagion both within our building and to our surrounding communities,” the complaint reads. The office policies “are expected to result in death and severe health complications and/or possible life-long disabilities,” it says.

The office requires most support staff to come in, rather than telework, as they deal with physical pieces of paper and files as part of their work, per the complaint. The few who can work from home can only do so once a week, and on rotating days because they share the same laptop, the complaint reads. At work, support staff sit in cubicles in a shared area, “in direct breathing paths of each other,” it says.

Nancy Sykes, the president of American Federation of Government Employees Local 3525, filed the complaint on behalf of the union. It represents non-managerial Board of Immigration Appeals employees in the office, including attorneys, paralegals, clerks, and legal assistants.

The EOIR spokesperson, meanwhile, said the office is working to implement coronavirus guidance from the Centers for Disease Control and Prevention, the Office of Personnel Management, and the General Services Administration.

. . . .

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

Read the rest of Betsy’s report at the link. Long a superstar at The Daily Beast, and an articulate “repeat panelist” on “Meet the Press” with Chuck Todd, it’s great to have Betsy “back on the immigration beat” as a part of her “new portfolio” over at Politico. I’ve always found Betsy’s clear prose and insightful analysis enlightening!

Typically within the Trump immigration kakistocracy, the harshest consequences fall jump-on the most vulnerable. In Immigration Court, it’s often unrepresented asylum seekers, some of them mere children, being railroaded through the system with regard to neither due process nor a legally correct application of asylum law. Here, the brunt of the latest EOIR assault on human dignity during the pandemic appears to fall on the support staff at the “bottom of the totem pole” of EOIR’s “bloated at the top,” yet astoundingly misdirected and consequently inefficient, bureaucracy. What a way to run the railroad — even a “Deportation Railroad!” 🚂

As my good friend and Round Table colleague, Judge Jeffrey Chase said: “In spite of having very genuine concerns, the BIA staff are generally off the radar. Thanks to Betsy for spotlighting them. The BIA staff union and the NAIJ put out a joint statement yesterday; let’s hope this begins a period of increased communication and cooperation.”

Many of us “old timers” remember a bygone era when the BIA staff was considered one of the premier places for career attorneys to work at the DOJ. This was largely because staff were treated “like family.” The BIA, in cooperation with the union, actually “pioneered” things like “flexible work schedules” and “work from home” at the DOJ. That union (of which I actually was among the “founding members” back in the 1970’s) was perhaps the first one at the DOJ to represent the interests of both attorneys and support staff. Those times sadly are long gone.

As I’ve mentioned before, under the Trump regime, EOIR “non-management” employees at all levels levels are treated with a disrespect, intentional demeaning, and callous disregard for health and welfare usually reserved for those poor souls trapped in what passes for an immigration justice system under the White Nationalist driven Trump regime. Risking employees’ lives to promote Trump’s reelection agenda? That’s actually illegal on a number of accounts. But, don’t expect any corrective actions in an era where the “rule of law” has been willfully distorted and undermined as Congress and the Article IIIs simply melt away under Trump’s contemptuous scofflaw onslaught.

Unhappily, as Betsy’s article highlights, there appears to be little chance of meaningful change unless and until enough employees actually start dropping dead, by which time it will be too late.

But, as I keep pointing out, there are “other villains” here. Despite DOJ/EOIR efforts to suppress truth, all of this basically is happening in “plain sight,” as we know from folks like Judge Ashley Tabaddor, the NAIJ, the BIA union, former Judges on the Round Table who are speaking out, courageous employees willing to “blow the whistle” anonymously, as well as reporters like Betsy, Erich Wagner at Government Executive (who “broke” this story), and Malathi Nayak at Bloomberg News, to name just a few. The unconstitutional mockery of Due Process, immigration, and asylum laws in Immigration Court hearings is documented in verbatim transcripts available to the Article III Courts and the Congress.

Yet, Congress and the Article III Courts let these grotesque abuses within our justice system go on largely unabated. It’s a disgusting and disturbing saga of the breakdown of America’s democratic institutions and their replacement by an authoritarian, “Third-World style” kakistocracy, headed by a dangerously incompetent and unrestrained clown 🤡 whom those charged with protecting us and our institutions refuse to hold accountable.

This November, vote like your life depends on it! Because it does!🇺🇸 We need “regime change” at all levels. And, that certainly includes a better, more courageous, more scholarly Federal Judiciary that understands immigration and human rights, believes in Due Process and fundamental fairness for all under law, and will finally stand up and put an end to these gross abuses if Congress doesn’t act first. Obviously, it’s also essential to get a new Executive committed to advancing, rather than destroying, our Constitution and the rule of law and who will strive for best, rather than worst, practices in all phases of government.

Due Process Forever! Clown Courts 🤡☠️ Never!

PWS

04-23-20

INSANITY ALWAYS ON THE DOCKET @ EOIR: Court Cleaners In Hazmat Suits Add To The “Clown Court” 🤡 Atmosphere — But, Those Forced To Risk Their Lives ☠️ To Keep The Deportation Railroad 🚂 Rolling Aren’t Laughing 😰!

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

Trump’s ‘Deportation Machine’ Keeps Growing Despite Pandemic – Bloomberg

Malathi Nayak reports for Bloomberg News:

As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.

With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.

“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”

While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.

The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.

‘Hobbesian Choice’

U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.

Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.

But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.

“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.

The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”

. . . .

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

Read the rest of the article at the link.

Nice quotes from Judges Tabaddor and Chase!

Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!

Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.

And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.

But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.

Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?

Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!

PWS

04-23-20

BLOWING THE BASICS: THE CONTINUING UGLINESS OF THE BIA’S FAILURE OF LEGAL EXPERTISE, JUDICIAL INDEPENDENCE, AND DECISIONAL INTEGRITY IS A “LICENSE TO KILL” MOST VULNERABLE AMONG US ☠️⚰️😰👎 — 3rd Cir. Says BIA Gets PSG Test Wrong, Fails To Apply Binding CAT Precedent, Distorts Facts to Engineer Wrongful Denial of Protection – “[W]e are troubled by the BIA’s apparent distortion of evidence favorable to Guzman in this case.” – Guzman Orellana v. Attorney General***

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

Dan Kowakski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-asylum-social-group-el-salvador-guzman-orellana-v-barr

CA3 on Asylum, Social Group, El Salvador: Guzman Orellana v. Barr

Guzman Orellana v. Barr

“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”

[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]

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

*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.

Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.

Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!

This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.

Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?

Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.

More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!

The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.

Due Process Forever! Captive Courts & Complicit Judges, Never!

PWS

04-18-20

BLOWING THE BASICS: 4th Cir. Says BIA Got Nexus & Political Opinion Wrong in Guatemalan Asylum Case — Lopez-Ordonez v. Barr — The Facts Were Compelling, But The BIA Worked Hard to Wrongfully Deny Protection!

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-;-nexus-political-opinion-guatemala-lopez-ordonez-v-barr

CA4 on Asylum, Nexus, Political Opinion, Guatemala: Lopez Ordonez v. Barr

Lopez Ordonez v. Barr

“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”

[Hats off to Samuel B. Hartzell!]

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

“Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”

Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law.

This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime.

More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection.

With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations. The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.

It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”

Due Process Forever! Captive “Courts” Never!

PWS

04-18-20

IDIOCY WATCH: “Clown Courts’” 🤡🤡🤡 Refusal To Follow COVID-19 Guidelines Is Top Headline In Today’s National Law Journal — “Congress should not have believed to have adopted … a suicide pact or a death trap.”☠️⚰️😰🆘😉

DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’

Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.

By Jacqueline Thomsen | April 15, 2020 at 06:35 PM

Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.

. . . .

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

Those will full access can go over to the NLJ for Jacqueline’s complete article.

With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C.

I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic.

And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.

What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards.

Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.

With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.

How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️

Due Process Forever. Clown Courts Never!🤡

PWS

04-16-20

BIA DENIES DUE PROCESS TO VISA PETITIONER, SAYS 9TH CIR. — Zerezghi v. USCIS

Dan Kowalski over at LexisNexis Immigration Community forwards this report:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-due-process-standard-of-proof-zerezghi-v-uscis

CA9 on Due Process, Standard of Proof: Zerezghi v. USCIS

Zerezghi v. USCIS

“We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.”

[Hats way off to Robert Pauw!]

Robert Pauw
Founding Partner
Gibbs, Houston & Pauw
Seattle, WA

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

How totally perverse has the EOIR system become?

Well, the BIA’s sole function is to insure Due Process for individuals and to apply top-flight expertise and scholarship to keep the Immigration Courts, ICE, CBP, and USCIS in line and following the law and best practices.

Instead, the BIA has become a corner-cutting, sloppy, “rubber stamp” on DHS Enforcement and USCIS “enforcement wannabes.” Remember, early on, the Trump regime made it clear that service to the public, i.e., immigrants, their families, and their communities, was no longer “part of the mission” at USCIS. Instead, the mission is to help ICE & CBP institute politically-driven White Nationalist xenophobic enforcement initiatives.

USCIS was created as a separate agency under DHS specifically to allow service to the immigrant community to flourish without the subservience to law enforcement often present and institutionalized at the “Legacy INS.” However, this regime and its toadies in DHS “Management” have seen fit to recreate the very same conflicts of interest and enforcement dominance that USCIS was created to overcome. In most ways, things are far worse than they ever were at the “Legacy INS.” And, let’s remember that USCIS is funded largely by user fees collected from the public on the now largely fictional rationale that they are getting valuable and professionalized services. What a complete mess and abuse of public funding!

Moreover, given the BIA’s lousy performance, rather than assisting the Article III Courts, it now all too often falls to the Article IIIs to keep the BIA in line and do its job for it. But, given the wide disparity in interest levels, expertise, and integrity among the Article IIIs, the results have been spotty.

Some Article III Judges step up and do the job; others sweep the chronic problems under the table and look the other way as rights are trampled and service to the public mocked. And, no Article III to date has been courageous and scholarly enough to take on the real problem: the glaring unconstitutionality under the Due Process Clause of a so-called “court” controlled, staffed, and evaluated by a highly biased prosecutor empowered to reverse individual case outcomes that don’t match his political agenda!

A glimpse of future horrors to come: Emboldened by Article III complicity, and egged on by the White Nationalist nativists, EOIR now outrageously proposes to charge astronomically higher fees for its shabby, biased, and ever deteriorating “work product.” This is a transparent attempt to further restrict access to justice for the most vulnerable among us. Another clear denial of Due Process!

Yes, Congress is responsible. Yes, Congress is largely in failure. But, that doesn’t absolve the Article IIIs of their duty to the Constitution, the rule of law, and human decency. Will they finally wake up, act with some courage, and do their jobs? Or, will they engage in further “judicial task avoidance” until it’s too late for all of us?

Due Process Forever!

PWS

04-16-20

“GOVERNMENT EXECUTIVE” SPOTLIGHTS EOIR HQ’s CORONAVIRUS “PLAN” — “[C]lose your eyes and cross your fingers”** 🤡☠️🤡☠️🤡☠️🤡

** Quote from a member of the Round Table of Retired Immigration Judges

https://www.govexec.com/management/2020/04/immigration-review-office-remains-open-despite-potential-covid-19-exposure/164584/

Erich Wagner reports for Government Executive:

Immigration Review Office Remains Open Despite Potential COVID-19 Exposure

Most support staff at the Executive Office of Immigration Review in Falls Church, Va., remain unable to telework even after two floors had to be deep cleaned after an employee exhibited coronavirus symptoms at work last week.

ERICH WAGNER | APRIL 13, 2020 05:29 PM ET

CORONAVIRUS

IMMIGRATION

TELEWORK

The agency responsible for conducting removal proceedings in immigration courts still is not providing telework for many of its employees, even after an employee exhibited coronavirus symptoms at work.

On April 8, an employee on the 20th floor of the Executive Office of Immigration Review’s office in Falls Church, Va., which the agency shares with the Social Security Administration, had symptoms consistent with COVID-19, although the employee has not been tested for the virus.

As a result, employees on that floor and the 21st and 22nd floors were temporarily sent home on weather and safety leave until contractors could conduct a deep cleaning. The 21st and 22nd floor employees returned to work Friday, while the 20th floor reopened on Monday, except to those who came in contact with the employee, who are now undergoing a 14-day quarantine.

“I want to advise you that an EOIR employee working on the 20th floor of the Skyline Tower Building has displayed symptoms of COVID-19,” wrote Executive Office of Immigration Review Director James McHenry in an email to employees last week. “The employee is now self-quarantined for two weeks and all persons identified as close contacts have been advised of their interaction with the symptomatic employee. We are conducting an enhanced cleaning of the 20th and 21st floors and the building’s common areas in compliance with [Centers for Disease Control and Prevention] guidelines. The CDC guidance does not indicate that any additional EOIR spaces would require cleaning.”

An agency employee, who requested anonymity out of fear of reprisal, said that employees on the 17th floor were told that if they were uncomfortable continuing to work in the office, they would have to take personal leave. And they said that while the attorneys and paralegals may work remotely, the agency still is not allowing most support staff and clerks to telework, citing a lack of laptops.

“Unlike at the immigration judge level, we’re still fully operational,” the employee said. “There’s been no change, no modification to the way we’re operating. We’re 100% fully staffed and we have attorneys, paralegals and support staff.”

The office remains open despite guidance from the Office of Personnel Management and the Office of Management and Budget urging agencies to “maximize telework” for employees wherever possible. Additionally, Deputy Attorney General Jeffrey Rosen and Assistant Attorney General for Administration Lee Lofthus directed Justice Department components to “move to a posture of maximum telework” in the Washington, D.C., region beginning March 16.

“Components should exploit all flexibilities in their telework policies, including adjusting duties and work to expand availability of telework to employees whose duties did not previously support telework, and even if the employee would only have enough duties to telework for part of a work day,” Lofthus wrote.

The EOIR employee said the agency has been resistant to implementing a continuity of operations plan that would prioritize detainee cases over non-detainee cases, as immigration courts have done to reduce the time needed to be in the office, and said they fear the agency is more concerned with “keeping up production numbers” than employees’ well-being.

“Why can’t we go into COOP status to minimize staff in the office?” the employee said. “We could go into only working detained cases, just like the courts, and we wouldn’t need as many staff. And with a smaller docket, maybe we could introduce rotations or stagger shifts. Right now the only option to stagger shifts is allowing some employees to work from 6 a.m. until 3 and then someone else could work later.”

The employee noted that, by comparison, when there was a positive coronavirus case among the Social Security Administration’s employees in the building, the agency completely evacuated the office, and employees have not returned since.

“Why did we come back to work so much faster [than Social Security]?” they asked. “SSA had one incident and they’re on 17 different floors, and they haven’t been back.”

The agency did not respond to a request for comment.

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

Interestingly, in past “Government shutdowns,” most EOIR HQ personnel were deemed “nonessential” and told to say home. Now, with a true emergency that could affect employee health and safety, and with the Immigration Courts’ “non-detained docket” — more than 95% of the EOIR workload — shut down, it becomes necessary to drag HQ staff in. To do what? Exactly what “essential services” are being performed that justify risking the health and safety of employees, their families, and their communities?

But, I suppose it’s no surprise that an agency sitting on a largely self-created backlog of 1.4 million cases, with no plausible plan for dealing with it, would essentially tell its own employees to “show up and hope for the best.”

PWS

04-14-20

RISKING LIVES TO KEEP THE DEPORTATION RAILWAY RUNNING — FOR UNACCOMPANIED KIDS! — “It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense.” — Julia Preston Reports For The Marshall Project

Julia Preston
American Journalist
The Marshall Project

Wendy Young
President, Kids In Need of Defense (“KIND”)

https://www.themarshallproject.org/2020/04/10/migrant-children-still-face-speedy-deportation-hearings-in-covid19-hotspots

Julia writes:

They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.

In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.

This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.

Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.

The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.

That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.

Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.

“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.

On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.

Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.

. . . .

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

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

The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.

First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.

Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.

Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.

Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.

Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.

The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.

Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.

Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.

All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.

And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”

Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”

Due Process Forever! Trump’s Child Abuse Never!

PWS

04-10-20

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

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

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