𝐗𝐗𝐗𝐗𝐗 “SEX & THE COURTHOUSE” 🤯 — A Tragicomic 🎭 Series Starring Judge Merrick Garland & DAG Lisa Monaco As Clueless Leaders Of A Failed Court System Where The Focus Is On Something Other Than Delivery Of Justice!

Sarah Jessica Parker will NOT be appearing in the Garland/Monaco production of “Sex And The Courthouse!”
Photo by Shawn Miller/Library of Congress. Public Domain.

Law360 (February 5, 2024, 6:23 PM EST) — The U.S. Department of Justice will pay $1.2 million to resolve a suit from a former staff assistant who said a California immigration judge routinely subjected her to explicit, lewd comments and once told her he would “make her straight” if they had sex.

By Grace Elletson

This article is “paywalled.” Those with Law360 access can get all the details.

But, the final settlement agreement is public and should give you a picture of what’s happening inside Garland’s often-secretive and dysfunctional “courts.”

Escoto

The Plot

On January 22, 2021, two days after President Joe Biden’s inauguration, then SF Chron reporter Tal Kopan ran an extensive, well-documented expose of the widespread sexual harassment problems at EOIR, the home of the U.S. Immigration Courts at the USDOJ. The story was picked up by other publications. Also, it was highlighted in that day’s edition of “Courtside,” along with a strong suggestion for immediate action addressed to incoming AG Judge Merrick Garland and AAG Vanita Gupta (a former, now very former, “civil rights maven”), both of whom had been nominated but not yet confirmed. See https://immigrationcourtside.com/2021/01/22/🇺🇸⚖%EF%B8%8Fnote-to-judge-garland-and-vanita-gupta-misogyny🤮-is-running-rampant-in-the-eoir-courts-soon-to-be-your/.

Six months later, in apparent response to Tal’s article, Deputy AG Lisa Monaco pledged to root out sexual harassment at DOJ, formed a committee (a bureaucratic device often used for “task avoidance”), and directed it to report within six months. See https://immigrationcourtside.com/2021/07/31/⚖%EF%B8%8Ftal-sf-chron-gets-action-on-sexual-harassment-eoir-rest-of-doj-report-on-problems-in-immigration-courts-finally-spurs-positive-response-but-biden-continue/.

It now appears that Monaco’s efforts at reform have been just as lackadaisical as her implementation of Biden’s Executive order on regulations improving the treatment of gender-based claims at EOIR and elsewhere in Government, and her and her boss’s disturbingly inept approach to EOIR reform generally!

True, many of the actual incidents covered by the complaint in this case happened before Biden took office. See https://immigrationcourtside.com/2023/05/04/%F0%9F%A4%AF-former-employees-explosive-federal-court-allegations-not-everyone-in-eoir-management-focused-on-guaranteeing-fairness-due-process/. But, the plaintiff’s termination by EOIR and her filing of administrative complaints that appear to have been “brushed off” by DOJ took place in 2021 and 2022, after Garland and Monaco assumed office and well after the endemic problems with sexual harassment at EOIR were public knowledge.

Yet, even with clear notice of the festering problems and an opportunity to address them in a way that would “change culture,” it required the institution of a Federal lawsuit by the plaintiff to obtain action and an effective remedy, almost three years after her termination.

Alfred E. Neumann — After years of overt anti-asylum bias and misogyny from Sessions and Barr, long suffering respondents, practitioners, and many EOIR employees expected a “due process/good government renaissance” under former Federal Judge and Supreme Court nominee Merrick Garland. However, despite a few improvements, Garland has “floated above” the chaos and lack of quality control that daily vex and plague those trapped in his dysfunctional, hopelessly backlogged “courts.”
PHOTO: Wikipedia Commons

It’s difficult to quantify the actual costs of EOIR mismanagement by Garland and his political lieutenants. After all, how do you put a money value on wrongful deportations, denial of constitutional rights, being subjected to substandard anti-immigrant decision making, bad precedents, “Aimless Docket Reshuffling” (“ADR”) on steroids, poorly trained judges, years stuck in limbo without the relief to which you are entitled, the effect of statistics manipulated to downplay the number of legal refugees stuck in EOIR’s hellish 3 million+ backlog, “courts” intentionally located in obscure inaccessible locations within the “New American Gulag” (“NAG”) run by DHS, and the overall “customer unfriendly” and often intentionally coercive mess to which those who practice before EOIR and those whose fate is in EOIR’s hands are subjected every working day? You can’t!

Nor is the waste of finite USG resources on chronic structural inefficiencies, boneheaded schemes to expedite dockets as “deterrents,” and ill-advised “defenses of the indefensible” in Federal Courts easy to value. But, in this case, we can quantify the cost to taxpayers of Garland’s and Monaco’s poor leadership — $1.2 million!

I wonder how many qualified accredited representatives a real problem solver and due process innovator like Professor Michele Pistone at VIISTA Villanova could train with that kind of money?

The poor leadership of Garland on immigration matters and the lousy performance of EOIR continue to be drags on the Biden Administration and our justice system. It didn’t have to be this way!

No Longer in the Cast: Former Associate AG Vanita Gupta, who left DOJ after three years of “failing to connect the dots” among civil rights, the rule of law, and the glaring violations of human rights and due process taking place at EOIR and the rest of the immigration bureaucracy. Literally, these abuses took place right under her nose, but apparently below her radar screen!

During Gupta’s tenure, the already horrible treatment of asylum seekers and other migrants of color within EOIR and the immigration bureaucracy actually deteriorated in many ways. Gupta is a sad, yet classic, example of what routinely happens to progressives once they are invited into the “halls of power” within the Government: They get co-opted into defending the status quo and the dangerous fiction of “revolution by evolution.” See, e.g., Perry Bacon, Jr., https://www.washingtonpost.com/opinions/2024/02/06/equity-diversity-inclusion-progressivism-limits/.

Just ask neo-Nazi Stephen Miller how “revolution” really works! He spent every day of his tenure in the Trump Administration single-mindedly working to dehumanize and demonize immigrants, particularly those of color and women, and to strip them of their already overly-limited rights. He paid no attention whatsoever to criticism, naysaying, and resistance from within or without. He took every “defeat” in Federal Court as an invitation to do something even worse and more outrageous.

While Gupta, despite her lofty position and civil right creds, was unable to materially improve the situation of migrants, Miller undid decades of progress on due process, racial justice, gender justice, and good government. Much of the damage he inflicted remains imbedded in the system, at DOJ, DHS, and elsewhere, as do many of those who willingly and enthusiastically assisted him.

The contrast between Gupta’s and Miller’s accomplishments and government “legacies” is a stunning illustration of the difference between Democrats and Republicans when it comes to immigrants’ rights, human rights, and racial justice — the fundamentals of governing. Democrat “political strategists” are belatedly “wondering and wandering” what to do about an “enthusiasm gap” with their core progressive voters who put Biden and Harris in office. The answer is staring them right in the face: Results matter!

🇺🇸 Due Process Forever!

PWS

02-09-24

😩TIRED OF PANDERING POLITICOS BASHING HUMAN RIGHTS & DEHUMANIZING BORDER COVERAGE BY THE MEDIA? — Here’s Some Straight Talk On The Border From Migration Expert Harvard Law Professor Gerald L. Neuman! ⚖️🗽 — “There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.”🤯

Professor Gerald L. Neuman
J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law
Harvard Law
PHOTO: Harvard Law

https://news.harvard.edu/gazette/story/2024/02/immigration-roars-back-in-headlines-time-finally-come-for-reforms/

Liz Mineo, Staff Writer, interviews Professor Neuman in The Harvard Gazette:

. . . .

What should be done about border security, enforcement, and the immigration court backlog?

In terms of enforcement, there is no easy solution. A border fence is merely a symbol and no solution. Clearly, the adjudication system needs more resources, and adjustments to improve both efficiency and fairness. For both sides, justice delayed is justice denied, and that should be an important part of the focus.

Another priority, contrary to some claims, is to reduce reliance on detention. The U.S. is engaged in arbitrary detention of migrants who really don’t need to be detained; they could be subject to surveillance.

The country should also respect its international obligations not to send people back to countries where they will be persecuted, tortured, or killed. It cannot suspend its international obligations on that front, and it should not openly violate them, as it did under COVID.

What measures should be taken to reduce the flow of migrants into the U.S?

In terms of enforcement, the important point to stress is that this is not an issue that the U.S. can solve unilaterally. There must be a regional solution. It’s obvious to anyone who looks at the logistics of the problem that the solutions depend on cooperation with Mexico. Congress can’t just impose a solution and assume that Mexico will go along with it. More broadly, there are other countries that need to be involved in protecting refugees and in solving some of the problems that lead to migration.

Some experts say the asylum system is a parallel immigration system and that it should be revamped. What’s your take on this?

I’d like to use the term asylum broadly, not legalistically, to cover forms of protection from persecution, killing, and torture. The U.S. asylum system is too opaque and too inconsistent: Valid claims may be rejected, and claims that are made in perfectly good faith may turn out to be invalid.

On the other hand, some people seek desperately to come to the U.S. for reasons that are not covered by asylum, such as poverty, loss of livelihood, or to join family members. The system needs to winnow those claims out while remaining open to valid claims for protection. It would also benefit from greater clarity on which claims are valid, and from more consistent adjudication, but now, the system is not meeting its obligations to persecuted people.

Finally, what are your realistic hopes for changes in immigration policies?

For now, my hopes would be that any new legislation would increase funding and would help give the public the sense that the border situation is being addressed.

And meanwhile that the executive would use the authority that it already has to manage the situation better, including by negotiating with other countries. The executive should resist efforts that obstruct its compliance with its obligations.

There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.

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

Read the full (edited) interview at the link.

“Decrease protection” seems to be a toxic bipartisan goal of Congress and the Administration. What’s preventing it? They can’t agree on the amount of cruelty, suffering, and dehumanization to inflict on vulnerable forced migrants who overwhelmingly seek only to have the USG process their legal claims for protection in a fair and timely manner! That reality has clearly been lost in the rancid, one-sided, often secret “negotiations” in Congress; the insipid statements of the Biden Administration promising more border closures, cruel, inhuman, degrading, expensive, and wasteful detention; and treacherous “bipartisan” abrogation of well-established “life or death” legal rights to fair consideration of claims!

Professor Neuman says “this is not an issue that the U.S. can solve unilaterally.” There is general consensus among migration experts on this fundamental truth! Yet, Congress and the Administration keep pretending otherwise, with little critical, informed “pushback” from the media.

Why isn’t Kristen Welker interviewing Professor Neuman and other migration experts, rather than making “Meet the Press” a “Foxlike Forum” for those promoting White Nationalist lies about the border and national security? Welker hasn’t bothered to inform herself about the human lives and human rights involved with forced migration at the border. Therefore, her feeble attempts to stop GOP nativist politicos from rambling on with their border myths are somewhere between ineffective to pathetic, but certainly must be maddening to anyone involved with assisting the actual humans seeking protection under our dysfunctional legal system!

Remarkably, but not surprisingly, many of Professor Neuman’s points relate directly or indirectly to the failure of AG Merrick Garland (amazingly, a former Article III Circuit Judge) and his lieutenants to reform EOIR and get it working in “real time.” The ideas for fixing EOIR and the enlightened expert leadership to do it are available in the private sector. See, e.g., https://immigrationcourtside.com/2023/12/19/⚖%EF%B8%8F🤯👩🏽⚖%EF%B8%8F👨🏻⚖%EF%B8%8F-as-garlands-backlog-hits-3-million-way-past-time-to-clean/.

Garland’s inexcusable failure to fix EOIR and get it working fairly, professionally, expertly, and in real time is a drag on the Biden Administration immigration policies and an existential threat to our democracy!

Inexcusable indeed! 🤯

🇺🇸Due Process Forever!

PWS

02-08-24

☠️🤮🏴‍☠️ “NO EXCUSE,” SAYS NDPA MAVEN DEBI SANDERS AS NPR REPORTS THAT BIDEN ADMINISTRATION PLAYED “HIDE THE BALL” ON HORRIFIC CONDITIONS IN THEIR “NEW AMERICAN GULAG” (“NAG”)! — Tom Dreisbach Reports For NPR On Yet Another Grotesque Failure By Garland, Monaco, Gupta, Clarke, & Prelogar To Do Their Jobs!

Inside the Gulag
The legacy of Biden, Harris, Mayorkas, Garland, Monaco, Gupta, Clarke, Prelogar and others will be truly ugly for the abuses in the “New American Gulag” that Mayorkas continues to operate while DOJ aids cover up and inexcusably defends grotesque human rights abuses! What happened to the concept of integrity and ethics at DOJ?

https://www.npr.org/2023/08/16/1190767610/ice-detention-immigration-government-inspectors-barbaric-negligent-conditions

In Michigan, a man in the custody of Immigration and Customs Enforcement (ICE) was sent into a jail’s general population unit with an open wound from surgery, no bandages and no follow-up medical appointment scheduled, even though he still had surgical drains in place.

A federal inspector found: “The detainee never received even the most basic care for his wound.”

In Georgia, a nurse ignored an ICE detainee who urgently asked for an inhaler to treat his asthma. Even though he was never examined by the medical staff, the nurse put a note in the medical record that “he was seen in sick call.”

“The documentation by the nurse bordered on falsification and the failure to see a patient urgently requesting medical attention regarding treatment with an inhaler was negligent.”

And in Pennsylvania, a group of correctional officers strapped a mentally ill male ICE detainee into a restraint chair and gave the lone female officer a pair of scissors to cut off his clothes for a strip search.

“There is no justifiable correctional reason that required the detainee who had a mental health condition to have his clothes cut off by a female officer while he was compliant in a restraint chair. This is a barbaric practice and clearly violates … basic principles of humanity.”

. . . .

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

Many thanks to my friend Debi Sanders for sending this my way with her succinct, “says it all,” two-word comment! Read and listen to the full report at the link.

Yet one more example of the failed Attorney Generalship of Merrick Garland! Where is the integrity, decency, and adherence to the rule of law that we were promised from a former Federal Judge and Supreme Court nominee?

Sure, the inhumanity flourished under the Trump regime! But, the last election was about a change and improvement, particularly in immigration. Garland’s performance on immigration, human rights, and racial justice should be a totally unacceptable to Dems!

🇺🇸 Due Process Forever!

PWS

08-17-23

☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

Four Horsemen — BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house?
Albrecht Dürer, Public domain, via Wikimedia Commons

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/11/18-70225.pdf

SUMMARY** Immigration

The panel granted a petition for review of the Board of Immigration Appeals’ denial of Francisco Reyes-Corado’s motion to reopen removal proceedings based on changed circumstances, and remanded.

The Board denied reopening based, in part, on Reyes- Corado’s failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corado’s failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.

The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncle’s family members to discourage him from avenging his father’s murder by his uncle’s family. The Board previously concluded that personal retribution, rather than a protected

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

REYES-CORADO V. GARLAND 3

ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.

As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corado’s claims for relief because they rebutted the agency’s previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corado’s family against his uncle’s family for at least fourteen years after Reyes-Corado’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corado’s evidence was not qualitatively different than the evidence at his original hearing.

The panel also declined to uphold the Board’s determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corado’s new evidence likely undermined the Board’s prior nexus finding, and the Board applied the improperly high “one central reason” nexus standard to Reyes-Corado’s withholding of removal claim, rather than the less demanding “a reason” standard.

4 REYES-CORADO V. GARLAND

The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.

COUNSEL

David A. Schlesinger

(argued), Kai Medeiros, and Paulina

Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.

Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.

OPINION

KOH, Circuit Judge:

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

Congrats to David A. Schlesinger & colleagues!

I’ve often discussed EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.

There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?

This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”

Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!

Lots of “talk,” not much “walk” from Dems!

🇺🇸 Due Process Forever!

PWS

08-15-23

⚖️👩🏽‍⚖️ IMMIGRATION COURTS: ABOUT HALF OF THE 19 NEWLY-APPOINTED IMMIGRATION JUDGES HAVE EXPERIENCE REPRESENTING INDIVIDUALS BEFORE EOIR!

Here’s the official list with bios from EOIR:

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2VvaXIvcGFnZS9maWxlLzE1ODM1MzEvZG93bmxvYWQiLCJidWxsZXRpbl9pZCI6IjIwMjMwNTEyLjc2Njc5NzYxIn0.JuSaHIpyovBHrDQUPD-sjQQccVOsekUbLd1QWO9w_Po/s/1130895796/br/190560600642-l

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

Maria T. Baldini-Potermin, Immigration Judge, Chicago Immigration Court

Maria T. Baldini-Potermin was appointed as an immigration judge to begin hearing cases in May 2023. Judge Baldini-Potermin earned a Bachelor of Arts in 1990 from the University of Dayton and a Juris Doctor in 1997 from the University of Minnesota Law School. From 2008 to 2023, she was the owner and managing attorney at Maria Baldini- Potermin and Associates PC in Chicago. During this time, from 2009 to 2023, she served as the author of “Immigration Trial Handbook,” a book she co-authored from 2008 to 2009. Also, from 2009 to 2021, she served as the update editor for “Immigration Law and Crimes” . From 2009 to 2021, she also served as a member of the board of directors of the National Immigration Project of the National Lawyers Guild, where she served as board chair and interim executive director in 2019. From 2007 to 2008, she was an associate immigration attorney at Gostynska Frakt Ltd., and from 2001 to 2007, at Scott D. Pollock and Associates PC in Chicago. From 1999 to 2001, she served as a National Association of Public Interest Law (NAPIL) Equal Justice Fellow with the Midwest Immigrant Rights Center (now National Immigrant Justice Center) in Chicago. From 1997 to 1999, she served as a NAPIL Equal Justice Fellow with the Immigrant Law Center of Minnesota (Oficina Legal) in Saint Paul, Minnesota. From 1996 to 1997, she served as an immigration law clerk at Guyton Law Office in Saint Paul, Minnesota. From 1994 to 1997, she trained law students at the Asylum Law Project in Minneapolis. From 1992 to 1994, she served as an accredited representative, and from 1991 to 1992, as a paralegal, with the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. From 1990 to 1991, she served as a paralegal with the Brownsville Catholic Charities Canada Asylum Project in Brownsville, Texas. Judge Baldini-Potermin is a member of the Illinois State Bar and the Minnesota State Bar. She is admitted to practice before the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits, and the Supreme Court of the United States.

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Angela Munro, Immigration Judge, Boston Immigration Court

Angela Munro was appointed as an immigration judge to begin hearing cases in May 2023. Judge Munro earned a Bachelor of Arts in 2000 from Brown University, a Master of Arts in 2004 from the Fletcher School at Tufts University, and a Juris Doctor in 2008 from Northeastern University School of Law. From 2010 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, EOIR. From 2008 to 2010, she served as a judicial law clerk at the Boston Immigration Court entering on duty through the Attorney General’s Honors Program. Judge Munro is a member of the Massachusetts Bar and the New York State Bar.

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

Hannah B. Kubica, Immigration Judge, Boston Immigration Court

Hannah B. Kubica was appointed as an immigration judge to begin hearing cases in May 2023. Judge Kubica earned a Bachelor of Arts in 2005 from Vanderbilt University and a Juris Doctor in 2008 from the Villanova University Charles Widger School of Law. From 2016 to 2023, she was in private practice as an associate, and later as a senior associate, at McHaffey & Nice LLC in Boston where she represented noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she provided pro bono services at Rian Immigrant Center, formerly the Irish International Immigrant Center. From 2016 to 2011, she was in private practice as an associate at Joyce & Associates PC in Boston. From 2011 to 2008, Judge Kubica was in private practice at GNP Law Firm in the greater Boston area, and at Weir & Partners LLC in Philadelphia. Judge Kubica is a member of the Massachusetts Bar and the Pennsylvania Bar.

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

Congrats and good luck to all of the new Judges. Remember: The job is about due process, fundamental fairness, practical scholarship, and best practices, NOT “pleasing your handlers” or making DHS Enforcement happy!

We’re “making progress” in getting more NDPA practical scholars on the Immigration Bench! But, we need even more to fundamentally change the culture at EOIR and to make due process the overriding mission, as it was supposed to be! So, NDPA’ers, keep those judicial applications coming!

🇺🇸 Due Process Forever!

PWS

05-13-23

🇺🇸🗽⚖️ JOIN AFSC IN OPPOSING THE BIDEN ADMINISTRATION’S EMBRACE OF TITLE 42 & THE DAILY VIOLATIONS OF HUMAN RIGHTS THE ADMINISTRATION COMMITS 🏴‍☠️ USING THIS UNLAWFUL & IMMORAL CHARADE!

https://www.afsc.org/action/tell-president-biden-restore-right-to-claim-asylum

Tell President Biden: Restore the right to asylum!

Sign our petition today

American Friends Service Committee

1.89K subscribers

End Title 42!

<div class=”player-unavailable”><h1 class=”message”>An error occurred.</h1><div class=”submessage”><a href=”https://www.youtube.com/watch?v=PpQH–gTPoA” target=”_blank”>Try watching this video on www.youtube.com</a>, or enable JavaScript if it is disabled in your browser.</div></div>

Migrants should be welcomed with dignity and compassion—not turned away or treated inhumanely.

Finally, after over two years, a district court has ruled that the Title 42 expulsion policy- which has blocked most migrants from crossing the U.S.-Mexico border to seek asylum- violates U.S. law and ordered the Biden administration to end it.

This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Other migrants have been forced to take dangerous routes through deserts, mountains, rivers, and the ocean—facing extreme heat, violence, even death.

The termination of the policy goes into effect at the end of December, unless the administration attempts to delay this. That is why we are calling on the Biden administration to end this policy IMMEDIATELY and to not accompany this with the expansion of detention.

Sign our petition to speak out against this cruel policy today!

Letter to President

Dear President Biden:

I believe that people fleeing dangerous situations in their home countries should be welcome to the United States with compassion—not dealt overwhelming obstacles to seeking asylum.

That is why I am relieved to hear that after over two years, a district court has ended the cruel and unnecessary use of Title 42. This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Under this cruel policy, Black and Brown migrants have suffered disproportionately while some others have been able to seek asylum—evidence of the racism that drives our immigration enforcement policies.

That is why I am calling on the Biden administration to end Title 42 immediately and to not replace it with other inhumane and xenophobic policies that cause similar harm. Additionally, your administration must not accompany this with the expansion of immigration detention. Any efforts to uphold this policy actively supports more family separations, trauma, and violence against Black, Brown, and immigrant communities.

All people—regardless of where they were born, the color of their skin, their culture or religious affiliation—should be able to seek refuge and be welcomed with the compassion, dignity, and respect we all deserve. I urge your administration to do all that you can to end Title 42 immediately—and ensure all migrants can exercise their right to seek asylum.

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The regime that employed this monster to abuse and persecute asylum seekers was voted out of office more than TWO YEARS AGO! Long past time for the Biden Administration to STOP defending, expanding, and carrying out his illegal and immoral policies that inflict “DIRE HARM” on vulnerable LEGAL asylum seekers! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General
Lisa Monaco, Deputy Attorney General
Vanita Gupta, Associate Attorney General
Kristen Clarke, Assistant Attorney General, Civil Rights
Elizabeth Prolager, Solicitor General

When these guys eventually “come out” of their cushy political positions, and are looking for jobs in the “real world” they now blithely ignore, progressives, human rights, and racial justice advocates should remember where they stood and what they did or failed to do when human rights and the rule of law were “on the line!”

🇺🇸Due Process Forever!

PWS

12-10-22

☠️⚰️💀GARLAND’S STAR CHAMBERS — “SLOW VIOLENCE” ON PEOPLE OF COLOR!🥵— Bias, Bad Law, Bungling Bureaucracy! — “Where Due Process Goes To Die!” 🤮 — Upcoming Book Will Expose Garland’s Lawless, Cruel, Inhumane “Court” System!

Slow Injustice @ EOIR — Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable!
The Wasp 1882-01-06 cover Slow but sure.jpg
Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man.
George Frederick Keller
Public domain

Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:

https://lawprofessors.typepad.com/immigration/2022/10/from-the-bookshelves-the-slow-violence-of-immigration-court-procedural-justice-on-trial-by-maya-pagn.html

Friday, October 21, 2022

From the Bookshelves: The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak

By Immigration Prof

The Slow Violence of Immigration Court Procedural Justice on Trial by Maya Pagni Barak (forthcominng March 2023, NYU Press)

The publisher’s description of the book reads as follows:

“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.

Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”

KJ

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The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system!

That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.

They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!

Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,

Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:

Maya Barak, Ph.D.

Associate Professor of Criminal Justice Studies

Maya P. Barak, PhD
Assistant Professor of Criminal Justice Studies
U. of Michigan -Dearborn
PHOTO: UM-D Websitew

College of Arts, Sciences, and Letters

College-Wide Programs

mbarak@umich.edu

1070 Social Sciences Building | 4901 Evergreen Road | Dearborn, MI 48128

Personal Website

Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies

Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime

Biography and Education

I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.

Education

Ph.D. in Justice, Law and Criminology

Teaching and Research

Courses Taught

CRJ 200: Intro to Criminal Justice

CRJ 417: Crimmigration

CRJ 418: Criminal Justice Research Methods

CRJ 419: LGBTQ+ Criminology

CRJ 480: Criminal Justice Theory

CRJ 487: Forensic Science

CRJ 517: Crimmigration

CRJ 518: CJ Research Methods

CRJ 519: LGBTQ+ Criminology

CRJ 580: Applied CJ Theory

CRJ 587: Forensic Science

FNDS 1607: Real Housewives of Crime: Crime, Law, & Reality TV

Selected Publications

Books

Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.

Selected Articles

Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).

Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.

Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)

Barak, Maya, Leon, K., and Maguire, Edward. 2020. “Conceptual and Empirical Obstacles in Defining MS-13: Law-Enforcement Perspectives.” Criminology and Public Policy (https://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12493).

Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.

Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!

What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!

Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”

🇺🇸Due Process Forever!

PWS

10-22-22

🤮☠️ MORE THAN 100 ORGANIZATIONS (WHO, UNLIKE GARLAND, ACTUALLY PRACTICE BEFORE HIS DYSFUNCTIONAL “COURTS”) RIP GARLAND’S INSANE, DUE-PROCESS-DENYING “DEDICATED DOCKETS!”

Wheels are off at EOIR — The wheels are off and the wagon rotting away at EOIR!
PHOTO: Creative Commons

The undersigned 106 legal service providers, court observers, and allied organizations located in the cities where the Dedicated Docket now operates. Together, we have observed hundreds of cases on the Dedicated Docket throughout the country. Our collective experience reveals a process rife with unfairness: lack of legal representation, expedited and arbitrary timelines, removal orders against pro se respondents (including young children), as well as courts marked by confusion and in some cases hostility.

Here’s the letter/report:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/groups-detail-grave-concerns-to-garland-re-dedicated-docket

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

What’s going on here!? As due process and equal justice are trashed, and lives and futures endangered, some of the best legal minds in America are forced to spend time pointing out the obvious to our “disconnected from reality” AG! What a waste!

This inexcusable disaster was totally predictable in advance! NO expert recommended this stupid, “sure to fail” “haste makes waste” approach to asylum in a faux “court system” already reeling from bias, management incompetence, hostility to due process, worst practices, far too many poorly qualified judges (some selected by Sessions and Barr for their perceived willingness to “railroad” asylum seekers), a notoriously anti-asylum appeals board, and rock bottom morale! Yet, Garland went ahead!

And NOBODY among his subordinates — not DAG Lisa Monaco, not AAG Vanita Gupta, not AAG/Civil Rights Kristen Clarke, not SG Elizabeth Prolager — at the DOJ had the guts to stand up and JUST SAY NO to his life-threatening nonsense. They all share the blame for this completely avoidable blot on our justice system and on their records (something progressives should remember when these irresponsible folks show up looking for jobs someday, as they inevitably will). What a disgrace! It didn’t have to be this way!

Why isn’t practice before the Immigration Courts and demonstrated commitment to human rights and due process a MINIMUM requirement for being the Attorney General or a top DOJ official in a Democratic Administration? No more “ivory tower” “tone deaf” appointments to key justice jobs from Democrats! End the deadly, wasteful nonsense! How many more innocents will be abused and systemically denied fundamental justice by EOIR before Biden and Harris pay attention to what’s happening “on their watch?”

And, folks, don’t forget the almost unfathomable “system costs” of having the knowledge, creativity, energy, and resources of these 106 organizations tied up in resisting and publicizing Garland’s stupidity and disdain by for equal justice and racial justice in America! They should be running EOIR, issuing great precedents on the BIA, solving problems in a practical, humane, legal manner as Immigration Judges, and redoing the broken and dysfunctional administrative system at EOIR.

The knowledge, personnel, creativity, and courage to establish a “model due process court system” are available “out here” — in spades. Instead, this avoidable human rights and racial injustice disaster is inflicted on our nation and some of the must vulnerable therein, by a tone-deaf Democratic Administration unwilling or unable to live up to their campaign promises! Disgusting! 🤮

🇺🇸Due Process Forever!

PWS

10-06-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”

[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Male Superhero — Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America!
PHOTO: Creative Commons

Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!

Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!

Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases? I like the fee award but I doubt that it has much impact on their behavior.”

I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!

If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.

The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!

Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?

The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.

How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?

By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!

One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!

Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!

It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!

Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights, and racial justice at DOJ!

I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!

It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️☠️⚰️🤮👎🏽 ILLEGAL & IMMORAL: HRC’s Stunning Indictment Of Biden Administration’s Continuing Abuse Of Legal Asylum Seekers — “The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families.”

“Floaters” — Although most senior Biden Administration officials work hard to avoid the border and confronting scenes like this, trauma, death, destruction, and dehumanization of the world’s most vulnerable will remain as indelible parts of their toxic legacies. “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

From ImmigrationProf Blog:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/two-years-of-suffering-biden-administration-continues-use-of-discredited-title-42-order-to-flout-refugee-law

Two Years of Suffering: Biden Administration Continues Use of Discredited Title 42 Order to Flout Refugee Law

Human Rights First, Mar. 16, 2022

“For two years, the U.S. government has illegally blocked and expelled people seeking refuge at the southern U.S. border despite U.S. laws and treaties created to protect them. Since March 20, 2020, the U.S. Department of Homeland Security (DHS) has used orders from the Centers for Disease Control and Prevention (CDC), purportedly issued under Title 42 of U.S. law, to prevent asylum seekers from requesting U.S. asylum and returning thousands to persecution, torture, and other horrific violence. In March 2022, the U.S. Court of Appeals for the D.C. Circuit found that the use of Title 42 to expel people to places where they would face persecution or torture is likely illegal, violating U.S. refugee laws and international treaty obligations.

The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that U.S. officials allow this policy’s use to evade refugee law. Human Rights First has now tracked at least 9,886 kidnappings, torture, rape, and other violent attacks on people blocked in or expelled to Mexico due to the Title 42 policy under the Biden administration – a new record of suffering.

Flouting refugee protection laws as a response to the COVID-19 pandemic is not and never was justified as a public health measure. Initially issued by the CDC under orders from senior Trump administration officials and despite objections by CDC experts, the Biden administration has continued the policy for migration policy and/or political reasons, according to various reports. CDC Director Dr. Rochelle Walensky re-issued a new version of the Title 42 order in August 2021, and has subsequently repeatedly extended it. The CDC must review whether to continue, modify, or end the Title 42 order by March 30, 2022.

Epidemiologists and medical experts have exhaustively established that Title 42 does not protect public health, and in fact exacerbates the spread of COVID-19. The claimed public health justification for the Title 42 order has become even more transparently unjustified as the administration lifts other pandemic-related international travel restrictions and with mask mandates lifted in all 50 U.S. states. In March 2022, the CDC partially terminated the Title 42 order as to unaccompanied children following a federal court ruling that would have compelled the resumption of expulsions of unaccompanied children. In a notice explaining the decision, the CDC cited declining COVID-19 cases nationwide, including in communities along the U.S.-Mexico border, increased vaccination rates in the United States and countries of origin, and widespread availability of COVID-19 testing and other mitigation measures at facilities receiving migrants. Despite these factors applying equally to all people seeking refuge in the United States, the CDC has so far disingenuously maintained the Title 42 order to expel families and adults.

At this shameful second anniversary of the Title 42 policy, the Biden administration continues to illegally turn away asylum seekers without access to the U.S. asylum system. It is carrying out dangerous expulsions to countries refugees have fled, including: El Salvador, Guatemala, Haiti, Honduras, and Mexico, as well as expelling some Venezuelans to Colombia. The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families. While some Ukrainians fleeing the Russian invasion have been allowed to cross into the United States at southern border ports of entry, Customs and Border Protection (CBP) continues to cite Title 42 to illegally block others and to discriminatorily turn away many asylum seekers of other nationalities and races who have often been waiting for months or years in danger in Mexico to seek U.S. asylum protection.

The Biden administration must immediately end this disastrous policy and restart the asylum processes required under U.S. law along the border, including at ports of entry, as Human Rights First has recommended. In recent weeks, dozens of members of Congress have publicly called for an end to the Title 42 policy with Senate leadership condemning the Biden administration’s decision to continuing sending asylum seekers “back to persecution and torture” as “wrong.” The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.

This factsheet updates prior research on the Title 42 policy by Human Rights First in February 2022, January 2022, December 2021, November 2021 (with Florence Immigrant and Refugee Rights Project), October 2021, August 2021, July 2021 (with Hope Border Institute), June 2021, May 2021 (with RAICES and Interfaith Welcome Coalition), April 2021 (with Al Otro Lado and Haitian Bridge Alliance), December 2020, and May 2020.”

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

How will Harris, Mayorkas, Garland, Walenksy, and other senior Biden Administration officials who have spinelessly furthered these inexcusable, illegal, abusive, and deadly anti-humanitarian policies deal with their toxic legacies? Also, Deputy AG Lisa Monaco, Associate AG Vanita Gupta, SG Liz Prelogar, and Assistant AG for Civil Rights Kristen Clarke stand out as irresponsible, “look the other way,” fundamentally flawed public officials who have failed to “rise to the occasion” in the time of democracy’s and humanity’s greatest needs! Carrying out “Miller Lite,” Jim Crow, xenophobic, racially targeted policies, often endorsing false narratives and using obvious pretexts, directed against some of the world’s most courageous, vulnerable humans, deserving of humane treatment and fair access to refuge, is “NOT OK!”

Perhaps the most telling observation about our exercise in national failure is this:

The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.

It’s not rocket science! All it would have taken to get his right would be some political courage and empowering those with the skills and vision to change the way we treat refugees, asylees, and other immigrants!

🇺🇸Due Process Forever!

PWS

03-2.0-22

⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

PRACTICE ALERTS

Mandatory E-Filing with EOIR, Starting FRIDAY

EOIR Updates

EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.

EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.

EADs Valid Longer

USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories

NEWS

After review, U.S. maintains border policy of expelling migrants, citing Omicron

CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.

Bill Aims to Remove US Immigration Courts from Executive Branch

VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.

148 Groups Ask Biden To Fund $50M For Migrant Atty Access

Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.

83,000 Afghans Made It To The US. Now They Need Lawyers

Law360: The arrival in the United States of 83,000 displaced Afghans following the military’s withdrawal from Afghanistan over the summer has put stress on the already overburdened immigration system and created an access to justice crisis that Congress needs to address, attorneys say. See also Additional $1.2 billion in resettlement assistance authorized earlier this week by President Biden.

Internal documents show heated back-and-forth between DeSantis and Biden admin over care of migrant children

CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.

Feds Pressed To Free Immigrant Detainees As Ill. Ban Kicks In

Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.

Mexican authorities evict Tijuana migrant camp near border

WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.

Robot Dogs Take Another Step Towards Deployment at the Border

DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”

LITIGATION/CASELAW/RULES/MEMOS

BIA Reinstates Removal Proceedings After Finding §2C:35-10(a)(1) of New Jersey Statutes Annotated Is Divisible with Respect to Specific Substance Possessed

AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)

BIA Dismisses Appeal After Finding §714.1 of Iowa Code Is Divisible with Regard to Type of Theft

AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)

BIA Rules Respondent’s Conviction for Conspiracy to Commit Wire Fraud Constitutes a Particularly Serious Crime

AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)

Unpub. BIA Termination Victory

LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”

CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility

AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)

CA1 Says Conviction in Rhode Island for Driving a Motor Vehicle Without Consent Is Not Categorically a Theft Offense

AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)

CA1 Holds That BIA Properly Applied Heightened Matter of Jean Standard to Petitioner’s Waiver Request

AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)

CA4 Finds That “Prosecution Witnesses” Is Not a PSG

AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)

CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application

AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)

4th Circ. Revives Guatemalan Asylum Case Over Family Ties

Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.

CA5 Finds Proposed PSG of Honduran Women Unable to Leave Domestic Relationship Was Not Cognizable

AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)

CA5 Finds Petitioner Removable Under INA §237(a)(2)(A)(ii) for Having Been Convicted of Two CIMTs After Admission

AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)

CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity

AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)

CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction

AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)

CA5 Withdraws Prior Opinion and Issues Substitute Opinion in Parada-Orellana v. Garland

AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)

CA6 Finds Petitioner Forfeited Ineffective Assistance Claim Because He Failed to Comply with Third Lozada Requirement

AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)

CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application

AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)

CA7 Says BIA Legally Erred by Considering Arguments That the Government First Raised on Appeal

AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)

CA8 Upholds BIA’s Decision Denying Motion to Reopen Even Though Petitioner Made a Prima Facie Case for Relief

AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)

CA9 Holds That BIA Sufficiently Complied with Notice Requirements Applicable to a Minor in Immigration Proceedings

AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)

CA9: Panel Nixes Deportation For Missing Court, Cites Faulty Notice

Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.

CA9 Finds Petitioner’s Conviction for Arson in California Was Not an Aggravated Felony

AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)

CA9 Declines to Rehear Velasquez-Gaspar v. Garland En Banc

AILA: The court issued an order denying the rehearing en banc of  Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)

CA11 Finds Petitioner Failed to Prove That Florida’s Cocaine Statute Covers More Substances Than the Federal Statute

AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)

Feds Fight Detention Probe In Migrant Counsel Access Suit

Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

Form Update: Form I-864, Affidavit of Support Under Section 213A of the INA, Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I-864EZ, Affidavit of Support Under Section 213A of the Act

USCIS: Starting April 7, 2022, we will only accept the 12/08/21 edition.

Form Update: Form I-824, Application for Action on an Approved Application or Petition

USCIS: Starting April 7, 2022, we will only accept the 12/02/21 edition.

RESOURCES

·         AILA: Practice Alert: Escalating Problems with Virtual Hearings and Contacting the Court

·         AILA: Can They Do It? The Myth of the Tech-Challenged Client

·         AILA: Sleep Debt: A Contributing Factor for Ethics Mishaps

·         AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion

·         AILA: Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue

·         AILA: Practice Resource: Fraudulent Document Standard and Matter of O–M–O–

·         AILA: Taking the Measure of Lozada

·         AILA Meeting with the USCIS Refugee, Asylum & International Operations Directorate

·         ASAP: February Updates

·         Asylos

o    The Bahamas: State protection for families of gang members who face persecution by gangs (AME2021-15)

o    Iraq: Situation of divorced, single mothers in Iraqi Kurdistan (MEN2021-19)

o    Hungary: Treatment of Roma Women and State Protection (CIS2021-09)

o    Russia: Domestic Violence (CIS2021-08)

·         CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

·         CLINIC: COVID & U.S. Citizenship and Immigration Services (USCIS)

·         CLINIC: COVID & Department of State

·         CLINIC: COVID & ICE

·         CLINIC: COVID & EOIR

·         MPI: Four Years of Profound Change: Immigration Policy during the Trump Presidency

·         USCIS Statement on the International Day of Zero Tolerance for Female Genital Mutilation

·         USCIS: Overview of myUSCIS for Applicants

EVENTS

2/8/22 EOIR to Host ECAS Information Session

2/8/22 Pandemic-Era Removal Proceedings: Practical Considerations

2/9/22 Updates and Options for Afghan Clients

2/9/22 DACA and Criminal Bars Issues

2/10/22 Request for Fee Waiver & Reduced Fee For Naturalization

2/14/22-2/15/22 2022 Crimes & Immigration Seminar

2/15/22 U Visa Filings and Bona Fide Determination

2/15/22 Anatomy of the USCIS System and Processes: Service Centers and Lockboxes

2/15/22 CGRS MCLE Webinar: Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/16/22 Acquisition of Citizenship

2/16/22 U Visa Webinar Series: Waiver of Inadmissibility

2/17/22 CGRS MCLE Webinar: Overview of Bars to Fear-of-Return Relief

2/22/22 Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/23/22 Filing Administrative Claims for Abuse and Misconduct by Immigration Officers

2/24/22-4/7/22 Introduction to Family-Based Immigration Law

2/24/22 CGRS MCLE Webinar: Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/25/22-2/26/22 Annual New York Asylum & Immigration Conference

2/28/21 ASISTA: Hot Topics in U and VAWA Cases

3/3/22 Before You Meet Your Removal Client: NTA, Form I-213, and DHS Charges

3/4/22-2/25/22 Update From the U.S. Consulate in Ciudad Juarez

3/4/22-2/25/22 Selected Issues in U Nonimmigrant Status

3/11/22 Inaugural Fourth Circuit Asylum Law Conference

3/15/22 Criminal Sentences and Immigration

3/21/22 Comprehensive Overview of Immigration Law (COIL)

3/23/22 Intermediate Intensive VAWA Training

3/28/22-4/14/22 NYIC Overview of Immigration Law Training (Save the Date)

4/6/22 Initial TPS Applications

4/7/22 CGRS MCLE Webinar: Motions Before the Board of Immigration Appeals

4/12/22 Introduction to Bond Proceedings

4/27/22 U Visa RFEs

4/28/22 Motions to Reopen Removal Proceedings

5/4/22 California Pardons and Post-Conviction Relief

5/10/22 Asylum Claims for Young People

5/17/22 Advocating for Prosecutorial Discretion for Clients in Removal Proceedings

5/19/22 Special Immigrant Juvenile Status: Your Client’s I-360 Is Approved, Now What?

5/24/22 Obstacles to TPS Eligibility

6/7/22 Asylum and Employment Authorization

6/8/22 Naturalization for People with Disabilities

ImmProf

Monday, February 7, 2022

·         U.S. Hispanic population continued its geographic spread in the 2010s

Sunday, February 6, 2022

·         Poetry Break: Immigration by Ali Alizadeh

·         Refugee Olympic Team at 2022 Winter Olympics in Beijing?

·         After review, Biden Administration maintains Title 42 border policy of expelling migrants

Saturday, February 5, 2022

·         WaPo Debunks JD Vance Talking Points on Biden & Unlawful Migration

·         NPR Politics Podcast: Democratic Activists Say Biden Has Failed To Deliver On Immigration Promises

Friday, February 4, 2022

·         From the Bookshelves: Joan is Okay by Weike Wang

·         The Toll of MPP (Remain in Mexico Policy) on Children

·         “The Disillusionment of a Young Biden Official” by Jonathan Blitzer for The New Yorker

·         Bill Introduced in Congress to Make Immigration Courts More Independent

·         Shalini Bhargava Ray on “Shadow Sanctions for Immigration Violations” in Lawfare

Thursday, February 3, 2022

·         Border Patrol to Use Robot Dogs

·         DACA Recipients Continue to Contribute

·         Immigration Article of the Day: Restructuring Public Defense After Padilla by Ingrid Eagly, Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian

Wednesday, February 2, 2022

·         New TPS Advocated for Migrants from Honduras, Guatemala, El Salvador, and Nicaragua

·         San Francisco apologizes for history of racism, discrimination against Chinese Americans

·         A Mexican American is the first Latina president of Harvard Law Review

·         From the Bookshelves: Go Back to Where You Came From: And Other Helpful Recommendations on How to Become American by Wajahat Ali

·         MPI Releases Report on Immigration Policy Changes During Trump Administration

·         Covid infections surge in immigration detention facilities

Tuesday, February 1, 2022

·         In Today’s WTF Deportation News

·         DeSantis Plays Politics with the Lives of Migrants

·         Congress, not Biden, should be held accountable for immigration reform

Monday, January 31, 2022

·         WES: Canada’s Enduring Appeal to Prospective Immigrants in the Face of COVID-19

·         Race, Sovereignty, and Immigrant Justice Conference

·         AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal

·         From the Bookshelves: No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border by Justin Akers Chacón and Mike Davis

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

Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.

ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings!

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 9, 2022

So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future.

BIA Chairman Wetmore, a former OILer who, whatever his shortcomings might be, does recognize the importance of not “overtly dissing” the Article IIIs, correctly says “No.” Perhaps, as suggested by my colleague Hon. “Sir Jeffrey” Chase, Wetmore had in mind that the 7th Circuit previously threatened to hold the Board in contempt for willfully ignoring its orders. See https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?

The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.

Wonder why there are gross inconsistencies and endless backlogs at EOIR? A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!

The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.

By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.

GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedents standing for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.

Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE, but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ?

These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put due process, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.

The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!

Due Process Forever!

PWS

02-09-22

TAL KOPAN @ SF CHRON: NO DUE PROCESS HERE☹️: GARLAND’S DESPICABLE “STAR CHAMBERS” CHEERED “ENGINEERED IN ABSENTIA” DEPORTATION ORDERS — Garland Fails To Provide Justice @ The Border Or In Biased “Courts,” But Inflicts Outrageous “Miller Lite” Anti-Due-Process “Gimmicks” On Vulnerable Migrants!🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.

Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.

The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.

Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.

The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.

The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.

Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.

More here:

https://www.sfchronicle.com/politics/article/Immigration-court-officials-cheered-results-of-16791798.php

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

Star Chamber Justice — This guy doesn’t realize that he could have avoided “justice” in Garland’s Star Chambers by not appearing for his hearing!

For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.

For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”

Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”

A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽

Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!

🇺🇸Due Process Forever!

PWS

01-20-21

⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

Yilun Cheng
Immigration Reporter, Columbus Dispatch
PHOTO: Twitter

Woman Tortured — Attorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.dispatch.com/story/news/2022/01/15/discipline-system-immigration-judges-lacks-transparency/9157927002/

In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.

The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.

Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.

But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.

Juan is not alone in his grievances. In May 2021, the Ohio chapter of the American Immigration Lawyers Association submitted a group complaint against Riley to the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice that oversees immigration courts.

Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.

But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.

Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.

. . . .

Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.

“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”

. . . .

Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.

In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.

In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.

“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”

Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.

“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”

. . . .

Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.

“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”

There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.

“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”

. . . .

The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.

The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.

The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.

“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”

. . . .

Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.

ycheng@dispatch.com

@ChengYilun

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

Read Yulin’s full article at the link.

First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.

https://immigrationcourtside.com/2021/01/18/⚖%EF%B8%8F🗽🇺🇸slavin-benitez-kowalski-schmidt-speak-out-on-broken-courts-yilun-cheng-reports-for-borderless-magazine/

Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!

So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?

The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.

Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!

Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.

Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.

Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.” But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!

Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.

Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!

The TRAC “national average” for asylum denials by IJs during this period was 67.6%.

So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”

As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.

All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.

Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.

Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!

Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.

The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.

While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.

He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)

Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!

Indeed, a full year the SF Chron’s Tal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”

From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?

Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”

As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!

🇺🇸Due Process Forever!

PWS

01-15-22

UPDATE:

The news isn’t all bad from Cleveland. Dan Kowalski over at LexisNexis reports that Cleveland Judge Jennifer Riedthaler-Williams (also a “high asylum denier — 94%) terminated without prejudice a removal case based on a defective Notice to Appear. https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/cleveland-ij-terminates-proceedings-defective-nta

Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡

There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!

The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!

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

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

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

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

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

…

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

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

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

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

Read Tal’s complete report at the link.

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸Due Process Forever,

PWS

01-14- 21

CODE RED! 🆘☠️⚰️IMMIGRATION COURTS FAIL AS GARLAND FLAILS — With Human Lives In The Balance & A Catastrophic Collapse Of System On The Horizon, Garland “Rearranges The Deck Chairs On The Titanic!” — “Aimless Docket Reshuffling” is a “Clown Court Strategy” 🤡 But, It’s No Laughing Mater For The Asylum Seekers & Their Lawyers Stuck In Garland’s Dysfunctional Mess!🤮

Deepa Fernandes reports for the SF Chron:

Waiting nine years for an asylum hearing in San Francisco https://www.sfchronicle.com/bayarea/article/An-El-Salvadoran-attorney-has-waited-five-years-16739505.php

A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.

Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.

In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.

But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.

A growing backlog

Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.

“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”

Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.

The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.

“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.

This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.

Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.

Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.

“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.

Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.

An analysis by the Migration Policy Institute shows that in 17,000 expedited docket cases under previous administrations, the majority of immigrants lacked legal representation and 80% of them were ordered removed without even being in court.

History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.

“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”

. . . .

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

Read Deepa’s full article at the link.

Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!

The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.

But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.

Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.

As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.

Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”

Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!

Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.

I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!

Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”

Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!

Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!

Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.

Ah, Yes, What Timing!

Just as I was posting this, my friend, Professor Lindsay Muir Harris at UDC Law published what I call the “Practical Scholars Compendium” to the missed opportunities that Garland and other members of “Biden’s Gang With Neither Vision Nor Moral Courage” have been compiling, as documented on Courtside and other blogs! See https://lawprofessors.typepad.com/immigration/2022/01/immigration-article-of-the-day-asylum-under-attack-by-lindsay-harris.html

Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.

Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.

Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.

Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.

It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

PWS

01-02-22

The Plot

Related posts:

Liz Mineo, Staff Writer, interviews Professor Neuman in The Harvard Gazette:

What should be done about border security, enforcement, and the immigration court backlog?

What measures should be taken to reduce the flow of migrants into the U.S?

Some experts say the asylum system is a parallel immigration system and that it should be revamped. What’s your take on this?

Finally, what are your realistic hopes for changes in immigration policies?

🇺🇸Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Here’s the official list with bios from EOIR:

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

🇺🇸 Due Process Forever!

Related posts:

Tell President Biden: Restore the right to asylum!

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General

Lisa Monaco, Deputy Attorney General

Vanita Gupta, Associate Attorney General

Kristen Clarke, Assistant Attorney General, Civil Rights

Elizabeth Prolager, Solicitor General

🇺🇸Due Process Forever!

Related posts:

Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:

Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:

Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”

🇺🇸Due Process Forever!

Related posts:

Here’s the letter/report:

🇺🇸Due Process Forever!

Related posts:

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

Related posts:

From ImmigrationProf Blog:

🇺🇸Due Process Forever!

Related posts:

ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings!

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 9, 2022

Related posts:

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever,

Related posts:

Deepa Fernandes reports for the SF Chron:

Ah, Yes, What Timing!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

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