@THE SUPREMES⚖️👩🏻‍⚖️: Round Table🛡, ACLU 🗽Push Back Against S.G. Francisco’s 🤮False/Misleading Narratives! – NO, Migrants Seeking Mandatory Protection From Persecution In “Withholding Only Proceedings” Are NOT “Just Like Any Other Deportable Individuals” – NO, Providing Due Process In Bond Hearings Will NOT “Overload” The System — It’s A Significant, Yet Routine, Part Of Any Immigration Judge’s Job! – What “Overloads” The System Is The Race-Driven “Malicious Incompetence” Of Trump’s DOJ/EOIR!

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

Asher Stockler reports for Law360:

. . . .

But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.

The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the

https://www.law360.com/articles/1327892/print?section=appellate 1/2

11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360

deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.

The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”

“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.

But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.

“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.

The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.

The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.

The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.

–Editing by Michael Watanabe.

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

Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.

That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!

Many, many, many thanks to our all-star pro bono team:

David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

Couldn’t have done it without you guys! You constantly “Make us look smart!”

You can read our complete amicus brief here:

19-897 bsac Immigration Judges

According to “Round Table Oracle,” Sir Jeffrey S. Chase, this is our sixth filed Supreme Court amicus brief, with another currently in the pipeline.

And, they do make a difference! For those who missed it, the Round Table amicus in Niz-Chavez v. Barr was specifically mentioned during oral argument before the Court: https://www.c-span.org/video/?471191-1/niz-chavez-v-barr-attorney-general-oral-argument

I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:

Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.

Well done, fearless fighters for due process!

Rachel McFarland
Legal Aid Justice Center
Charter Member, New Due Process Army

This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.

Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.

I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.

Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.

Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!

The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!

Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.

It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.

It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.

It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.

Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)

Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!

The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.

The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!

And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.

The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.

American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”

And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:

Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

PWS

11-14-20

⚖️👨🏻‍⚖️👩‍⚖️CHANNELING THE OUTRAGE AT THE FLRA’S OVERT UNION, DUE PROCESS, AND FIRST AMENDMENT BASHING! — Read Jeffrey S. Chase’s Penetratingly Indignant Analysis Of This Sham Decision — Regime’s Larger Plan To Abolish Unions, Politicize, & “Dumb Down” Career Civil Service Should Be D.O.A. In Biden-Harris Administration!

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/11/6/the-outrageous-decision-to-decertify-the-ijs-union&source=gmail-imap&ust=1605304468000000&usg=AOvVaw15nn5hFuo-vhDvBl2kSJF4

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

The Outrageous Decision to Decertify the IJ’s Union

Our attention is understandably focused elsewhere right now. However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union. While this might seem to be a minor issue at the moment, it is not. At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.

The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago. It weathered a similar decertification effort in 2000. Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize. Under federal labor law, one is classified as a manager if their position “influences policy.” 20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion. In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy. The FLRA then noted 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. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”

In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novo review, their findings of fact are now reviewed for clear error. Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy. So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification. At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision. As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.” Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.

The Regional Director dismissed the claim based on the above arguments and testimony. But there was always a sense that the administration had something up its sleeve. That “something” turned out to be two Trump appointees, FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott. They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them. The two stayed true to form in decertifying the NAIJ. The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion in the NAIJ’s case, which concluded with the following language:

This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”

By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.

First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach. Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards). As several leading scholars explained in an article in Slate: “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”

But of great importance is a point I raised last year in an article I wrote for Law360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:

while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ. In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views. Such actions would constitute a troubling attempt by the executive branch to influence case outcomes. Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.

Just prior to the FLRA’s decision, an executive order creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views). By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order. To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.

While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant. First, the earlier decertification effort in 2000 occurred under a Democratic administration. Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration. Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.

The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term. It is therefore hoped that readers will amplify the news of the decision and all it means. It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision. And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct

There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration. FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent. But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.

Copyright 2020 Jeffrey S. Chase. All rights reserved. reprinted with permission.

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

Thanks for speaking out so forcefully and articulately, my friend,

I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.

Due Process Forever!

PWS

11-09-20

“PURE SOPHISTRY” 🤮— POLITICIZED FLRA MAJORITY REVERSES REGIONAL DIRECTOR, BUSTS IMMIGRATION JUDGES’ UNION!— NAIJ President Judge Ashley Tabaddor Pledges To Continue Fight For Due Process Rights Of Migrants & 1st Amendment Rights Of Judges!

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

Here’s a message Judge Tabaddor sent to all Immigration Judges:

Subject: Update on Agency Action to Decertify NAIJ

THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

November 3, 2020

Dear Colleagues,

Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”

This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.

We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.

Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.

As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.

Ashley Tabaddor

President, NAIJ

—

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

Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court!

Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!

Due Process Forever!

PWS

11-05-20

AILA SUIT SEEKS SKINNY ON STAR CHAMBER SCANDAL — Secret “Remote Adjudication Centers” (“The Racks”) 🤮☠️⚰️ Subvert Justice, Abuse Asylum Seekers!

Under watchful eye of regime officials, “Remote Adjudicators” hone skills in using “rack” to deter asylum seekers from seeking justice:

Star Chamber Justice — “Justice”
Star Chamber
Style

FYI – Link to Press Release.

FOR IMMEDIATE RELEASE

October 30, 2020
Contact: Maria Frausto, mfrausto@immcouncil.org

Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases

WASHINGTON, DC — Immigration groups filed a lawsuit today in the United States District Court for the District of Columbia against the Executive Office for Immigration Review (EOIR)—which oversees immigration courts—and the General Services Administration (GSA) requesting information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.

The lawsuit—filed by the American Immigration Council, American Immigration Lawyers Association, the Chicago AILA Chapter, and the National Immigrant Justice Center— seeks the disclosure of records on the obscure procedural rules for immigration adjudication centers. The centers are a new initiative created under the Trump administration where immigration judges adjudicate immigration cases from around the country in remote-only settings that are closed to the public.

Immigration adjudication centers appear to have been created to address immigration court backlogs, but attorneys and immigrants facing deportation have little instruction on the procedures for appearing before these centers. Immigration lawyers and advocates have expressed concerns after public reports indicate the potential expansion of immigration adjudication centers across the country.

The lawsuit challenges EOIR’s failure to disclose information in response to a Freedom of Information Act request submitted in March 2020. EOIR and GSA have failed to disclose critical information about what immigration courts presently exist, immigration court expansion, and contracts governing this expansion.

“Immigration lawyers and advocates have an interest in pressing for more transparency in the immigration courts, helping ensure the due process rights of all who appear in court, and providing guidance to the lawyers representing people before these courts,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council.

“Transparency is essential to a fair day in court. Unfortunately, the secretive creation and expansion of immigration adjudication centers where immigration judges conduct remote-only proceedings in facilities closed to the public demonstrate how opaque an already complex immigration court system has become at the hands of this administration. While the Department of Justice regulations require immigration hearings to generally be open to the public, this administration has imposed significant new barriers to the public’s ability to observe these proceedings and has led to some hearings being conducted in secret, calling into question whether the fundamental elements of due process are being met. We are proud to stand alongside our partners in this effort,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.

“Everyone deserves a fair day in court. The lack of transparency in EOIR operations compromises the integrity of our immigration system and undermines public confidence in this system,” said Nell Barker, chair of the American Immigration Lawyers Association’s Chicago Chapter. “The secretive expansion of immigration courts is a blow to due process and adds a layer of unnecessary unpredictability to a system that struggles to inform stakeholders about changing procedures. We are concerned about the increasing inaccessibility of immigration courtrooms to lawyers, clients, and the public.”

“The secretive and inaccessible immigration adjudication centers, where judges determine whether noncitizens will be deported to persecution and torture or permanent family separation, are a disturbing example of the manner in which this administration has developed and expanded numerous policies and procedures intended to expedite the deportation of noncitizens without due process,” said Sarah Thompson, senior litigation attorney at the National Immigrant Justice Center. “EOIR must make public its plan for future adjudication centers and the procedures under which these centers operate.”

A copy of the complaint is here.

###

For more information, contact the American Immigration Council:

Maria Frausto at mfrausto@immcouncil.org or 202-507-7526.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.

The National Immigrant Justice Center (NIJC) is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. Visit immigrantjustice.org and follow @NIJC.

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

The current system is specifically designed to “break” asylum seekers and their representatives in body and mind.

Will a lawless regime get another four years to finish the job of destroying American democracy and eradicating justice? Or, will there be hope on the horizon for a better future for all Americans!

Vote ‘Em out, vote ‘Em out!

PWS

11-01-20

PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%! — Two Items From ImmigrationProf Blog!

Professor Ingrid Eagly
UCLA Law
Blogger, ImmigrationProf Blog
Picture from ImmmigrationProf Blog

First, from ImmmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2020/10/op-ed-when-trump-says-immigrants-dont-show-up-for-court-hearings-he-couldnt-be-more-wrong.html

ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’

The government’s data, however, tell a far different story.”

Check out the op/ed and the take down of President.

[Dean] K[evin] J[ohnson]

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

Also from ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2020/10/new-fact-sheet-from-vera-institute-of-justice-on-immigration-court-appearance-rates.html

A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).

I[ngrid] E[agly]

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

Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.

It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.

And, as I pointed out yesterday, “Gruppenfuhrer Miller” and his gang of neo-Nazi thugs have every intention of “doubling down” on their crimes against humanity and anti-democracy agenda if they retain power after the upcoming election. https://immigrationcourtside.com/2020/10/30/%f0%9f%91%b9%f0%9f%8e%83halloween-horror-%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%e2%9a%b0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bbreichsreport-gruppenfuhrer-miller-reveals/

Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.

For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”

We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!

Due Process Forever!

PWS

10-31-20

🏴‍☠️☠️⚰️🤮👎🏻THE TRUMP REGIME & A CORRUPT SOLICITOR GENERAL HAVE CONDUCTED A WAR OF ATTRITION AGAINST AMERICAN LAWYERS ON THE FRONT LINES OF THE BATTLE TO SAVE DEMOCRACY — John Roberts & His GOP Buddies On The Supremes Have Aided, Abetted, & Encouraged It! — Constant Improper & Ethically Questionable Interference With Thoughtful, Legally Correct Lower Court Rulings Holding The Regime Accountable Have Demoralized The Profession’s Best & Bravest! — The Answer Is Better Judges For A Better America!

https://prospect.org/justice/loneliness-of-the-immigration-lawyer/

Marcia Brown Reports in American Prospect:

Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.

Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.

“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.

More from Marcia Brown

Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.

Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.

Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.

Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.

. . . .

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

Read Marcia’s full article at the link.

Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”

Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses! But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.

The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!

Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!

It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.

Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.

Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?

Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?

It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!

We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”

It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!

And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!

Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”

Due Process Forever!

PWS

1–29-20

🇺🇸⚖️🗽🛡⚔️😎👍ANOTHER NDPA/ROUND TABLE VICTORY OVER DHS/EOIR SCOFFLAWS – 2d Cir. Applies Constitution To Bond Hearings – Says Burden On DHS To Show “Clear & Convincing” Evidence For Imprisonment In Gulag – Velasco Lopez v. Decker

Velasco Lopez v. Decker, 2d Cir., 10-27-20, published

Here’s a link to the opinion:

19-2284_op

Here’s a link to the Round Table’s amicus brief:

https://drive.google.com/file/d/16RkOlBfGLEn_RfBEZqQDmhrY7aBhA70P/view

PANEL: PARKER, CHIN, AND CARNEY, Circuit Judges

OPINION BY: BARRINGTON D. PARKER, Circuit Judge

SUMMARY:

The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk.

KEY QUOTE:

The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated.

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

Judge Parker is correct insofar as he cogently states what should be a “win-win-win” under a functioning Government. I wholeheartedly join lead counsel Julie Dona of the Legal Aid Society, NY, in appreciating and recognizing Judge Parker’s understanding of the grim realities of today’s mal-functioning Immigration Courts and the important Constitutional rights being abridged by DHS & EOIR (essentially one and the same under the Trump kakistocracy).

But, that statement of how Government should be functioning glosses over the unfortunate reality of the Trump regime’s lawless, White Nationalist, nativist immigration agenda. The Trump regime doesn’t seek to create “win-win-win” situations! Instead, they seek to make political statements, dehumanize and degrade “the other,” and promote the biases of their “base” over sound public policy that benefits the common good.

The purpose of imprisonment in the Trump Gulag all too often has little or nothing to do with the legal criteria of danger to the community or flight risk. Rather, detention in the Gulag is used by the Trump regime’s DHS, with the connivence of the DOJ and often the courts, to punish individuals who choose to assert their legal rights; make it more difficult for them to obtain effective representation; and to coerce them into abandoning viable claims for relief, appeals, and judicial review. It’s all about punishment and deterrence, not mainly about the public interest, which is ill-served by most of Trump’s biased and counterproductive immigration policies.

DHS detention in the Trump era primarily serves Trump’s political interests and the interests of those running the for-profit prisons comprising much of Trump’s New American Gulag. Any time Trump’s policies match up with a legitimate national interest, it’s purely happenstance, not part of some overall plan to govern in the public interest.

Think things couldn’t get worse? Notorious White Supremacist “Gruppenfuhrer” Stephen Miller plans to go “full-Nazi” if the Trump regime stays in power, as reported by Amanda Holpuch in The Guardian. https://www.theguardian.com/us-news/2020/oct/28/stephen-miller-trump-second-term-immigration-blitz?CMP=Share_iOSApp_Other

Miller’s plans are so explosively ugly, overtly racist, and anti-American that they are being kept under wraps (for now) because of a (quite legitimate) fear that they could drive the small, yet potentially significant, minority of voters of color that Trump needs to have any chance of extending his rule to do something rational and in their self-interest: Vote for Biden-Harris. Look for things like eliminating birthright citizenship, eradicating all refugee and asylum laws, making it difficult or impossible for family members and people of color to immigrate legally, a wave of summary deportations, deporting “Dreamers,” and exterminating every last ounce of compassion and humanity from our laws. If you think that Black Lives don’t matter much to Trump and his cronies, just wait until he turns the Gruppenfuhrer loose! Think the Federal Courts will stop him? Just look at Trump’s “wholly owned and proud to brag about it” Supremes’ majority! And, he’s also “stacked” — effectively “packed” — the lower Federal Courts with loyalist ideologues.

America can no longer afford life-tenured judges who treat Trump as “normal” and are unwilling or incapable of “connecting the dots” among the dehumanization and demonization of migrants, institutionalized racism, and the end of American democracy. Immigrants’ rights are human rights; human rights are Constitutional rights; dehumanization of “the other” dehumanizes us all!

It’s past time that America stopped granting the privilege and responsibilities of life-tenure to those who won’t publicly adhere to those fundamental truths! Not rocket science! Just basic Constitutional law and human decency! Better judges for a better America! It all starts with a better President and a better Senate! That’s why this election might be our final chance to take back our country and preserve our democracy!

Due Process Forever!

PWS

10-28-20

🦘🏴‍☠️☠️⚰️⚖️👎🏻🤮“KANGAROO KOURTS” MUST GO: NY City Bar Blasts Billy The Bigot Barr’s Deadly Immigration Court Farce, Calls For Article I! — “This step is now more crucial than ever, as ‘the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.’”

Kangaroos
https://www.flickr.com/photos/rasputin243/
Creative Commons License

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

City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court

October 21, 2020

The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”

The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”

According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”

The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.

As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”

The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”

The report can be read here: https://bit.ly/31tFEpm

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

Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.

“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!

There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOP Senate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

PWS

1-22-20

🏴‍☠️RULE EXTENDING ASYLUM BARS TO BECOME FINAL NOV. 20, OVER OBJECTIONS OF ROUND TABLE, MANY OTHER EXPERTS — The Undoing Of U.S. Asylum Law Continues Full Speed Ahead!🤮

THE DEPARTMENTS OF JUSTICE AND HOMELAND SECURITY PUBLISH FINAL RULE TO RESTRICT CERTAIN CRIMINAL ALIENS’ ELIGIBILITY FOR ASYLUM

New Mandatory Bars Prevent Convicted Felons, Drunk Drivers, Gang Members, and Other Criminal Aliens from Receiving Asylum

WASHINGTON – Today, the Department of Justice and the Department of Homeland Security announced the publication of a Final Rule amending their respective regulations to prevent certain categories of criminal aliens from obtaining asylum in the United States. The rule takes effect 30 days after publication of the Final Rule in the Federal Register, which is scheduled to occur on Wednesday, Oct. 21.

Asylum is a discretionary immigration benefit that generally can be sought by eligible aliens who are physically present or arriving in the United States, irrespective of their status, as provided in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158. However, in the INA, Congress barred certain categories of aliens from receiving asylum. In addition to the statutory bars, Congress delegated to the Attorney General and the Secretary of Homeland Security the authority to establish by regulation additional bars on asylum eligibility to the extent they are consistent with the asylum statute, as well as to establish “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA. To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.

The new bars apply to aliens who are convicted of:

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Aliens who have committed certain domestic violence offenses, even if not convicted, will also be barred from asylum.

###

_________________________________________

Executive Office for Immigration Review

Office of Policy

Communications and Legislative Affairs Division

PAO.EOIR@usdoj.gov

703-305-0289

I adopt the comment of my friend and colleague Judge Ilyce Shugall, the “lead drafter” of the Round Table’s 🛡⚔️🗽⚖️comments in opposition:

This is so awful, but not unexpected. We will keep filing comments in the hopes that a new administration reads them carefully and can un-do the harm that has been done.

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

Due Process Forever!

PWS

10-20-20

THE GIBSON REPORT — 10-12-20 — Compiled By Elizabeth Gibson, Esquire. NY Legal Assistance Group — DocumentedNY Takes You Inside The Maliciously Incompetent Kakistocracy Known As Immigration “Courts,” That Aren’t “Courts” At All & Where The Victims Might Never Have Any Idea Of Why They Are Being “Ordered Deported” By “Judges” Beholden To the Regime’s Corrupt & Racist Enforcement Apparatus! (Item #5 Under “Top- News”) — Plus Other News From The Regime’s “Twilight Zone!”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, October 30, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]

TOP NEWS

ICE Is Planning To Fast-Track Deportations Across The Country

Buzzfeed: Immigration and Customs Enforcement officials have started to implement a policy that allows officers to arrest and rapidly deport undocumented immigrants who have been in the US for less than two years, according to internal emails and documents obtained by BuzzFeed News.

Amid pandemic, sharply increased U.S. detention times put migrants at risk

Reuters: Detention centers now house fewer than half as many people as before the pandemic – less than 20,000 as of early October – in part because emergency health measures established in March have allowed authorities to expel nearly 150,000 migrants at the border. At the same time, the ICE data show, the average amount of time immigrants spent in U.S. detention almost tripled to three months this September compared to September 2016, before President Donald Trump took office. Detainees in September 2020 were being held nearly double the amount of time as in September 2019.

San Diego judge upholds state ban on private immigration detention centers

LA Times: Under the ruling, at least four immigration detention centers with the capacity to house about 5,000 people would be phased out over the coming years.

Justice Department cancels diversity training, including for immigration judges

SF Chron: The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.

How the Immigration Courts Malfunctioned: What We Saw

DocumentedNY: A prosecuting attorney for ICE losing a detainee´s file, immigrants spending more time in jail because the video teleconferencing system malfunctioned, a judge deporting children because they failed to show up to court. The following are some of the negligences we saw after we spent three months in the immigration courts.

Supreme Court Reopens Local Leader’s Immigration Case

DocumentedNY: Ravi Ragbir, an immigrant advocate who runs the New Sanctuary Coalition, has been fighting his deportation with a First Amendment claim

‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said

NYT: Top department officials were “a driving force” behind President Trump’s child separation policy, a draft investigation report said.

ICE Arrested More Than 100 Immigrants In California Weeks Before The Presidential Election

Buzzfeed: The arrests were the latest effort by ICE to target the state and its policies that reduce the cooperation between local police and federal agents when it comes to immigration enforcement.

The Matter Of Castro Tum

LatinoUSA: In 2018, a young Guatemalan man named Reynaldo Castro Tum was ordered deported even though no one in the U.S. government knew where he was, or how to find him. Now, more than two years later, his unusual journey through the United States’ immigration system has sucked another man back into a legal quagmire he thought that he’d escaped. This episode follows both of their stories and the fateful moment they collided.

LITIGATION/CASELAW/RULES/MEMOS

EOIR Payment Portal

EOIR: The EOIR Payment Portal is available to pay BIA Filing Fees associated with the form EOIR-26 and related BIA Motions. Filing fees for the Form EOIR-29 and related motions should continue to be paid in accordance with Department of Homeland Security (DHS) instructions. Payments for immigration court fees must follow current processes (See 8 C.F.R. 1103.7).

EOIR Announces 20 New Immigration Judges

EOIR announced the investiture of 20 new immigration judges, including three assistant chief immigration judges. Per the notice, EOIR’s immigration judge corps has increased nearly 70 percent since January 2017. Notice includes the judges’ biographical information and courts of appointment. AILA Doc. No. 20101200

Oral Argument This Week in Pereida v. Barr

ImmProf: Oral argument in the case is scheduled for this Wednesday morning, October 14, 2020 at 11:00 a.m. Eastern. The argument may be listened to live. In Pereida, the Supreme Court will decide whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Petitions of the week: Sanchez v. Wolf

SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.

USCIS Updates Policy Guidance on TPS and Eligibility for Adjustment of Status Under INA §245(a)

USCIS is updating policy guidance in the Policy Manual confirming that a grant of TPS is not admission for INA §245(a) adjustment purposes; clarifying that the applicability of decisions in the sixth and ninth circuits is limited to those jurisdictions; and incorporating Matter of Z-R-Z-C. AILA Doc. No. 20100635

Second District Court Grants Motion for Preliminary Injunction of USCIS Fee Rule

A district court granted the plaintiffs’ motion for a preliminary injunction and stayed the effective date of the USCIS Final Rule (except for those fees set by statute) pending resolution of the matter or further order of the court. (NWIRP et al., v. USCIS, et al., 10/8/20) AILA Doc. No. 20100909

District Court Declares Unlawful 2018 SIJ Policy Imposing Reunification Requirement on State Courts

A federal district court in Washington State declared unlawful a 2018 policy requiring state courts to have jurisdiction to order reunification, if warranted, before making the relevant Special Immigrant Juvenile (SIJ) findings. (Moreno Galvez, et al. v. Cuccinelli, et al., 10/5/20) AILA Doc. No. 20100842

BIA Rules That Cancellation of Removal Despite Criminal Conviction Precludes a Later Finding of Deportability Based on the Same Conviction

The BIA ruled that if a criminal conviction was charged as a ground of removability when cancellation of removal was granted, that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings. Matter of Voss, 28 I&N Dec. 107 (BIA 2020) AILA Doc. No. 20100840

CA1 Finds “Wealthy Immigrants Returning to Jamaica” Is Not a Cognizable Particular Social Group

The court held that the petitioner’s withholding of removal claim failed, because it found that “wealthy immigrants returning to the country of Jamaica” did not form a cognizable particular social group. (Lee v. Barr, 9/22/20) AILA Doc. No. 20100535

CA1 Upholds Asylum Denial to Kenyan Petitioner Who Opposed Al-Shabaab

The court upheld the BIA’s denial of asylum, finding that terror attacks in Kenya by Al-Shabaab constituted generalized violence, and rejecting the petitioner’s proposed social group of westernized and Americanized Christian Kenyans who oppose Al-Shabaab. (Zhakira v. Barr, 10/2/20) AILA Doc. No. 20100901

CA3 Holds It Lacks Jurisdiction to Review IJ’s Discretionary Denial of Continuance to Petitioner Convicted of Aggravated Felony

Where petitioner, who had been convicted of an aggravated felony, argued that the BIA erred in upholding the IJ’s denial of his motion for a continuance, the court dismissed the petition, finding he had failed to state a constitutional claim or question of law. (Mirambeaux v. Barr, 10/2/20) AILA Doc. No. 20100903

CA3 Rejects Due Process Claims of Mexican Petitioner Who Sought Cancellation of Removal

Where BIA had dismissed petitioner’s appeal on the ground that his removal would not cause his daughters “exceptional and extremely unusual hardship,” the court rejected his two due process challenges, finding that neither was a constitutional claim. (Hernandez-Morales v. Att’y Gen., 9/2/20) AILA Doc. No. 20100902

CA5 Upholds Denial of Asylum to Chinese Petitioner Who Claimed He Had an Anti-Corruption Political Belief

The court upheld the BIA’s denial of asylum to the Chinese petitioner, finding that the evidence did not compel a reasonable factfinder to conclude that the petitioner had been persecuted for his political opinion rather than for personal reasons. (Du v. Barr, 9/14/20) AILA Doc. No. 20100540

CA8 Finds BIA Did Not Abuse Its Discretion in Denying Petitioner’s Motion to Reopen Based on Ineffective Assistance

The court upheld the BIA’s denial of the petitioner’s motion to reopen, finding that the petitioner had not substantially complied with the requirements in Matter of Lozada for reopening removal proceedings based on alleged ineffective assistance of counsel. (Avitso v. Barr, 9/22/20) AILA Doc. No. 20100537

CA9 Upholds District Court Order Prohibiting Government from Detaining Certain Minors in Hotels for Longer Than 72 Hours

The court denied the government’s motion for a stay of the district court’s order precluding DHS from placing minors detained under a Title 42 public health order in hotels for more than three days in the process of expelling them from the United States. (Flores v. Barr, et al., 10/4/20) AILA Doc. No. 20100906

CA9 Upholds Asylum Denial to Guatemalan Petitioner Who Did Not Report Abuse by Ex-Boyfriend to Police

Upholding the denial of asylum to the petitioner, who had been abused by her ex-boyfriend, the court held that substantial evidence supported the conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Barr, 9/30/20) AILA Doc. No. 20100904

CA9 Finds Petitioner Was Properly in Asylum-Only Proceedings and IJ Lacked Jurisdiction to Consider Adjustment of Status Request

The court held that the termination of petitioner’s grant of asylum by reopening his asylum-only proceedings was not error, and that the IJ did not have jurisdiction to consider his request for adjustment of status because of the limited scope of such proceedings. (Bare v. Barr, 9/16/20) AILA Doc. No. 20100630

CA9 Holds That Petitioner’s Oregon Conviction for Manufacture of a Controlled Substance Was an Aggravated Felony

The court held that Oregon Revised Statute §475.992(1)(a) is divisible as between its “manufacture” and “delivery” terms, and that the petitioner’s conviction under that statute for manufacturing marijuana was thus an aggravated felony. (Dominguez v. Barr, 7/21/20, amended 9/18/20) AILA Doc. No. 20081036

CA9 Says Conviction Under California Penal Code §245(a)(1) for Assault with a Deadly Weapon Other Than a Firearm Is a CIMT

Deferring to the BIA’s decision in Matter of Wu, the court held that a conviction under California Penal Code §245(a)(1), which proscribes certain aggravated forms of assault, is categorically a crime involving moral turpitude (CIMT). (Safaryan v. Barr, 9/17/20) AILA Doc. No. 20100631

CA9 Overrules Minto v. Sessions and Concludes Resident of CNMI Is Not Removable Under INA §212(a)(7)(a)(i)

The en banc court overruled Minto v. Sessions, holding that the petitioner, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the INA became applicable there, was not removable under INA §212(a)(7)(a)(i). (Torres v. Barr, 9/24/20) AILA Doc. No. 20100538

DOS Issues Update on Court Order Regarding Presidential Proclamation 10052

DOS announced that due to the injunction in NAM v. DHS, any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the plaintiffs in the suit is no longer subject to PP 10052’s entry restrictions. AILA Doc. No. 20100536

RESOURCES

National Bail Fund Network 2nd round of bailouts across the country, as part of an action on 10/21 called Fall Freedom Day 2020. Referrals by sending us an email at constanza.nbfn@gmail.com and including the following information: Name and link to your practice or organization, Detention center where person is detained, and their bond amount.

Instructions for Witness Declarations in Support of Asylum Applications (Spanish)

100+ Policy Changes that Have Devastated Immigrants and Asylum Seekers

Debunking “Extreme Vetting”: Recommendations to Build Back the U.S. Refugee Admissions Program

How the U Visa is Revictimizing the People It Was Created to Help

Top 10 Ethics Issues Raised by the October Visa Bulletin

Practice Alert: Office of Biometric Identity Management FOIA Delays

GAO Says HHS Needs to Improve Oversight of Care Facilities for Unaccompanied Children

Practice Alert: Important Updates Regarding Form I-765, Application for Employment Authorization

Violence and Discrimination Against LGBT People in El Salvador, Guatemala, and Honduras, and Obstacles to Asylum in the United States

Request Matter of A-B- Practice Advisory from CGRS

Status of USCIS Fee Waiver Changes – October 2, 2020

Asylos Research: Zimbabwe: Availability of Medication (AFR2020-18) – ENG; Nigeria: Yoruba convert to Christianity (AFR2020-20) – ENG.

ICE Air Flights September & September 2020 YTD

The Impact of COVID-19 on Noncitizens and Across the U.S. Immigration System

Mapping Far-Right and Anti-Immigrant Movement Alignment with County Sheriffs

EVENTS

10/14/20 Immigration, Healthcare, and the Coronavirus Crisis

10/14/20 Understanding Retroactivity in Immigration Matters

10/14/20 Affordable Federal Litigation Strategies, Part II

10/15/20 Maintenance of Status: What You Need to Know in the Current Climate

10/16/20 New EAD Rules for Asylum Seekers

10/20/20 Immigration in the 2020 Election

10/20/20 Fee Rule Implementation: Effects on Survivor Relief

10/21/20 Advising TPS Clients in Light of Recent Developments

10/21/20 Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption

10/21/20-10/23/20 Case Management Skills & Database Functions

10/21/20 Migrations and One Health: Human, Animal, and Environmental Interactions and Emerging Diseases

10/22/20 Non-LPR Cancellation: Overview of Eligibility & Proving Continuous Presence

10/23/20 Migration as Resistance: The Underground Railroad

10/27/20 Seeking Special Immigrant Juvenile Status in Removal Proceedings

10/27/20 Immigration, COVID-19, and the 2020 Election

10/28/20 Advanced U Visa Hot Topics

10/28/20 The Ecology of State-Building: Moving Capitals in Indonesia

10/29/20-10/30/20 2020 Crimes & Immigration Seminar

10/29/20 Presenting the Case

10/29/20 Marijuana: Bridging the Divide Between State and Federal Law

11/4/20 Program Strategies for Removal Defense Practice

11/10/20 Pursuing Immigration Pro Bono Opportunities in Private Practice

11/11/20 Climate Change and Oceanic Migrations

11/12/20 Defying Non-Reviewability: How to Proceed After a Consular Denial

11/17/20 Make the Government Pay! Attorney fees in Immigration

11/17/20 Employment-Based Immigration Opportunities for Immigrant Youth

11/18/20 Applying for Asylum and Related Relief for Clients with Convictions

11/24/20 VAWA Self-Petitioning Fundamentals

11/30/20 Perfecting a Winning Strategy for Asylum Applications

12/2/20 Migration, Climate Change, and Human Adaptation

12/2/20 An Overview of Naturalization

12/3/20 Representing Permanent Residents in LPR Cancellation Cases

12/3/20 2020 AILA Crimes and Immigration Virtual Conference

12/3/20-12/4/20 53rd Annual Immigration and Naturalization Institute

12/8/20 Litigating Your Way Out of Delay

12/9/20 Public Charge in Consular Processing

12/15/20 Crimes Involving Moral Turpitude

12/16/20 LPRs and Public Charge

12/16/20 Program Strategies for Removal Defense Practice

2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas

2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021

ImmProf

Monday, October 12, 2020

Supreme Court Petitioned to Review Salvadoran TPS Case

Latino USA: The Matter Of Castro Tum

Sunday, October 11, 2020

Oral Argument This Week in Pereida v. Barr

Algeria Expells Migrants Into Niger

Holly Cooper on Family Separation: On REDIRECT: Immigration Law and Perspectives Podcast

The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act is Important for Immigrants and Here’s Why

Video of immigration officers stopping Black jogger is ‘unacceptable in so many ways,’ Boston Mayor Marty Walsh says

Saturday, October 10, 2020

Your Playlist: Rolling Stones, Heartbreaker (1972)

News Outlets Catching Up With Immprofs: Trump Has Radically Changed Immigration

Justice Department cancels diversity training, including for immigration judges

An Asylum Decision by Judge Barrett

Friday, October 9, 2020

Your Playlist: Maximo Park

Humanitarian Immigration Policy Is the Backbone of a Progressive Democracy—Let US Bring It About

It’s Been a Week Since the 9th Circuit Issued an Injunction on the USCIS Final Fee Rule… Now What?

Courts should be a sanctuary space for T-Visa applicants to be safe from ICE & deportation

Debunking “Extreme Vetting”: Recommendations to Build Back the U.S. Refugee Admissions Program

Federal Court Upholds Most of California’s Private Prison Ban

Thursday, October 8, 2020

Lindsay Harris: Trump’s War of Attrition on Women Asylum Seekers

Report Catalogues 100+ Policy Changes by Trump Administration That Have Devastated Immigrants

Joke of the Day (or last night)

Thursday, October 8, 2020

New Episodes of Podcast The Other Side of the Water: Immigration and the Promise of Racial Justice

Call for Papers: USF Symposium: Leveraging the Law For Human Trafficking Survivors

Critical Conversations: Racial Justice and the Immigrant Rights Movement by University of Minnesota Law School’s James H. Binger Center for New America

DHS announces ICE enforcement actions on “criminal aliens” released due to California sanctuary policies

Vice President Pence and Senator Harris Square Off in VP Debate

Wednesday, October 7, 2020

Biden’s Central America Plan Goes Beyond Immigration

Inter-American Commission Hearing Charges U.S. and Mexico with Human Rights Violations at the Border

Emerging Immigration Scholars Workshop at UCLA/UCSD

Call for Papers: Winter 2021 Emerging Immigration Scholars Workshop

Anti-LGBT Persecution in El Salvador, Guatemala, Honduras

Most Asylum Seekers Have No Legal Counsel. This Villanova Program Trains Non-Lawyers to Step In.

Report alleges that former Attorney General Jeff Sessions aggressively favored separating migrant families

Federal District Court Enjoins USCIS in SIJS Case: “defendants have engaged in a practice of delaying the adjudication of SIJ petitions”

Eddie Van Halen Dies at 65

Report: Flawed Design: How the U Visa is Revictimizing the People It Was Created to Help

Tuesday, October 6, 2020

Interim Final Rule Narrowing Scope of H1-B Visa

Immigration scholar Natalia Molina wins 2020 Macarthur Fellowship

An Election with Consequences for Immigrants to Watch this Fall? How about the Race for District Attorney in Los Angeles?

Immigrants on COVID America

Flores Lives: Ninth Circuit Denies U.S. Government’s Call for Emergency Stay of Orders in Flores v. Barr

Monday, October 5, 2020

From The Bookshelves: Letters from Cuba by Ruth Behar

Immigration Law Professor Maureen Sweeney Lauded as Public Servant of the Year by the University of Maryland

Breaking News: Supreme Court Vacates and Remands Court of Appeals Decision Halting Removal of Immigrant Activist

Immigrantly, A Podcast

PBS Documentary on Proposition 187 and Change in Latinx Voting in California

USCIS Issues Policy Guidance Regarding Inadmissibility Based on Membership in a Totalitarian Party

Immigration Article of the Day: A Domestic Reign of Terror by Ediberto Roman

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

Only the “tip of the iceberg” in a thoroughly corrupt and totally dysfunctional system that nobody seems willing to put out of its misery and the injustices that it causes humanity and the rule of law each day that it continues to grind out gross miscarriages of justice!

PWS

10-13-20

TAL KOPAN @ SF CHRON: 🏴‍☠️ Billy The Bigot’s DOJ Goes Full Racist, Cans Immigration Courts’ Diversity Training!

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

https://www.sfchronicle.com/politics/article/Justice-Department-cancels-diversity-training-15635203.php

Justice Department cancels diversity training, including for immigration judges

WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.

The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.

“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.

Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.

The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.

Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.

Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.

The Justice Department did not immediately respond to a request for comment.

Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”

“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”

The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.

“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”

President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.

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

Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”

Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.

Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!

Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!

PWS

10-11-20

DEGRADING DUE PRCESS: “Billy the Bigot” Appoints 20 New “Deportation Judges” — Most From Government/Prosecutorial Backgrounds, Few With Immigration Expertise!

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large — Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

Here’s the DOJ Press Release:

New immigration judges

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

Obviously, we need an independent Immigration Court with a merit-based, fair, selection system.

Vote ‘em out, vote ‘em out!

PWS

10-11-20

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON AILA LITIGATION ABOUT NEW JERSEY IMMIGRATION COURTS⚖️!

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

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!

By Hon. Sue Roy

Former U.S. Immigration Judge

Exclusive to Courtside

Oct. 8, 2020

As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.

This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.

As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.

Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.

It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.

Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.

Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.

The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.

Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.

There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.

As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.

We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.

NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.

Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.

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

Thanks, Sue, for all you do for due process!

Here are links to my previous reports on the litigation:

https://immigrationcourtside.com/2020/09/05/22729/

🏴‍☠️☠️🤮👎KAKISTOCRACY WATCH: NJ AILA Sues EOIR’s Malicious Incompetents To Stop Deadly ☠️☠️☠️🤮 In-Person Hearings

Due Process Forever!

PWS

10–08-20

MARCIA BROWN @ NEW REPUBLIC — There Can Be No Due Process Without An Independent Immigration Court Staffed By Qualified Judges!

https://newrepublic.com/article/159530/best-way-protect-immigrants-whims-politics

. . . .

Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”

Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”

. . . .

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

Read the full article at the link.

Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’s mismanagement and misuse of the Immigration Courts.

Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.

Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!

Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.

Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!

First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.

Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.

It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.

Due Process Forever!

PWS

10-06-20

BILLY APPOINTS MALPHRUS AS ADDITIONAL DEPUTY CHIEF APPELLATE IMMIGRATION JUDGE (“VICE CHAIR”) @ BIA! — Hard Line, Restrictionist, Anti-Asylum, Anti-Due-Process Jurisprudence Rewarded!🏴‍☠️☠️⚰️

Billy Barr Consigliere — Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

From the EOIR website:

Garry Malphrus

Deputy Chief Appellate Immigration Judge

Attorney General William P. Barr appointed Garry Malphrus as a deputy chief appellate immigration judge in September 2020. Judge Malphrus earned a Bachelor of Arts in 1989 from the University of South Carolina and a Juris Doctor in 1993 from the University of South Carolina. From August 2008 to September 2020, he served on the Board of Immigration Appeals, Executive Office for Immigration Review, including as acting board chairman from October 2019 to May 2020. From 2005 to 2008, he served as an immigration judge at the Arlington Immigration Court. From 2001 to 2005, he served as associate director of the White House Domestic Policy Council. From 1997 to 2001, he worked for the U.S. Senate Committee on the Judiciary, which included serving as chief counsel and staff director on the Subcommittee on Criminal Justice Oversight and the Subcommittee on the Constitution. From 1995 to 1997, Garry served as a law clerk for the Honorable Dennis W. Shedd, U.S. District Judge for the District of South Carolina. From 1994 to 1995, he was a law clerk for the Honorable William W. Wilkins of the U.S. Court of Appeals for the Fourth Circuit. From 1993 to 1994, he was a law clerk for the Honorable Larry R. Patterson, Circuit Judge for South Carolina. Judge Malphrus is a member of the South Carolina Bar.

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

No surprise here, folks, as Courtside had predicted this back in May:

https://immigrationcourtside.com/2020/05/22/%f0%9f%91%82%f0%9f%8f%bb%f0%9f%91%80%f0%9f%a4%abeoir-rumor-mill-doj-honcho-x-oiler-david-h-wetmore-reportedly-will-be-tapped-as-new-bia-chair/

This appears to be the “penultimate step” in the ongoing process of “benching” the long-time “holdover” Vice Chair Chuck Adkins-Blanch. First, he was “passed over” when Judge Malphrus became the BIA’s Acting Chair following the hasty departure of former Chair David Neal. Now, Malphrus basically has been “layered in” to be the “real Deputy,” who will faithfully continue to carry out Billy’s nativist political agenda, presumably until Adkins-Blanch reaches retirement and finally pulls the plug.

Needless to say, Judge Adkins-Blanch’s name has been conspicuously absent from the BIA’s most recent barrage of anti-immigrant, anti-asylum “precedents.” That is, of course, the “precedents” that Billy lets the BIA write as opposed to the ones that he and his fellow political hacks at “Main DOJ” issue as “AG precedents.”

More and more, the AG, whom nobody except, perhaps, a few intentionally tone-deaf Circuit Court of Appeals Judges, would mistake for an “expert” in immigration law, has taken over the BIA’s precedent setting function. That leaves the BIA basically to do the “mop-up work” of maximizing the impact of Billy’s anti-immigrant policies and insuring that just and fair results below favoring immigrants are reversed upon demand of “EOIR’s masters” at DHS Enforcement.

Talk about the need for an Article I Court with a new cast of characters selected on a merit basis for their demonstrated immigration expertise, and established commitment to due process, fundamental fairness, equal justice, human rights, and practical applied scholarship! That so many Article III judges continue to “go along to get along” with this vile legal charade says some pretty sad things about the overall state of justice and the judiciary in America!

An Article I Court requires judicial leadership that replaces “built to fail ‘Vatican Style’ (or “Legacy INS Style”) hierarchical bureaucracy” with professional court administration and a much “leaner and flatter” judicial structure. A judicial structure where most resources are devoted to actually fairly and efficiently deciding cases, establishing “best practices,” and leading by example. That would eliminate the “Mickey Mouse” demeaning “control freak supervision (“suppression”)” of supposedly senior level “judges” who, if properly selected, would need effective support, but little to no “supervision” in the normal bureaucratic sense of the term.

In the meantime, expect the backlog to grow unabated and the Article IIIs to continue to reverse and return an essentially random selection of the BIA’s reliably “one-sided” jurisprudence for “redos!” That will further increase the backlog without effectively addressing the fundamental problem of an unconstitutional system with a clearly established anti-immigrant political bias!

Just more signs of an American justice system now in the throes of institutional failure!

Due Process Forever!

PWS

09-29-20

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

Related posts:

Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Under watchful eye of regime officials, “Remote Adjudicators” hone skills in using “rack” to deter asylum seekers from seeking justice:

Vote ‘Em out, vote ‘Em out!

Related posts:

Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

Related posts:

Due Process Forever!

Related posts:

Related posts:

Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!

Related posts:

Vote ‘em out, vote ‘em out!

Related posts:

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!

By Hon. Sue Roy

Former U.S. Immigration Judge

Exclusive to Courtside

Oct. 8, 2020

Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Due Process Forever!

Related posts: