Inspired by “Bleak House” by Charles Dickens (1895).
PHOTO: Public Realm
As told to “Courtside” by a leading American lawyer!
CHAPTER ONE: Eighteen Years
18 years ago today, July 21, 2004, ICE put my USC (native-born) client into (non-detained) removal proceedings. We are now at the BIA for the 4th time. At the IJ level, I won the first two rounds, lost the third, and won the last round…the IJ ordered termination with prejudice…again. ICE appealed, again. Really getting tired of this nonsense.
There is a structural flaw in the INA if the BIA can evade judicial review by remanding the case back down to the IJ, over and over again, forever. And as for timing on the last round, the BIA briefing closed in April 2021, well over a year ago.
No need to reply, just venting….
CHAPTER TWO: Count Your Blessings
It could have been worse. Much worse!
If the brief got lost in Eyore’s disorderly system or was a day late, the BIA might have “summarily dismissed” the appeal! Even now, they might well decide the case without reading the record or considering the briefs!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
But, rest assured, whatever nightmare happens, there will be no accountability from Judge Garland. If the BIA blows it, issues a “final” order, and the Circuit reverses, it will go back to the BIA again. If they get around to it, they will send it back to the IJ.
This could go on until the client dies, the attorney retires, the file gets lost, EOIR collapses, or all four of the foregoing.
CHAPTER THREE: Count Your Blessings, The Eyore View
Public Realm
This U.S. citizen client is quite lucky. He has been allowed to hang around for 18 years in limbo! So, what’s the problem?
You want “priority treatment?” Get detained! Or, claim that you are an unrepresented Haitian asylum applicant at the Southern border. Then you will see what “expedited handling” is all about!
CHAPTER FOUR: It’s Not Unusual
Witness the 18-year saga of poor Mr. Negusie, previously “low lighted” on “Courtside.” “A microcosm of all that’s wrong with our Immigration Court System — 17 years, 4 Administrations, 5 different tribunals (including the Supremes), 0 Final Resolution!” https://wp.me/p8eeJm-76y
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The INA has its problems. But, I’m skeptical that’s the real issue here.
Poorly functioning judges, a substandard appellate body, weak and/or incompetent judicial administrators, an anti-immigrant “culture,” antiquated “user unfriendly” procedures, political interference, lack of true judicial independence, grotesque inconsistencies, lack of accountability, no discernible values, no commitment to due process, lack of creative problem solving, and unwillingness to stand up to far-right White Nationalists and tell them to “buzz off” is what’s dragging EOIR (“Eyore”) down, inhibiting racial justice, and threatening our democracy. Seriously, this is “big time systemic failure” with existential consequences!
That’s largely within Garland’s power to fix! But, beyond removing a few of the “worst of the worst,” appointing a modest number of “bright lights” to the judiciary, and reversing some of the worst anti-immigrant, legally inane, and practically disastrous “precedents” ever (basically “Day One Stuff”), he hasn’t’ gotten the job done!
Undoubtedly, there are many talented folks — experts in immigration, human rights, due process, and racial justice — who could have correctly and finally resolved this case more than a decade ago. The problem is that they are “out here” and far lesser qualified judges and inept administrators are “calling the shots” at EOIR.
End the nonsense, bring in the talent, and fix the system! Sure, nativists and far right xenophobes are “invested” in a failed justice system — for various reasons, none of them valid. They will go ballistic if it starts functioning and treating individuals fairly and justly.
Great! The more they bluster and spread their White Nationalist BS and outright lies, the better Garland is doing. Up until recently, the far right crowd has been largely indifferent to what’s going on at EOIR. That’s because the Biden Administration has done little at EOIR that would make the “Stephen Miller crowd” unhappy. Their recent absurdist, disingenuous reactions are proof that Garland is finally making a few, long overdue, reforms and personnel changes that “hit home” and advance judicial competence, due process, fundamental fairness, and better practices.
The key is to fix EOIR, and tell the anti-due-process crowd to “go pound sand!” That’s exactly what neo-Nazi activist Stephen Miller and his motley crew would do if the situation were reversed!
There is, of course, a potential happy ending here. Replace the BIA with real judges! Hire real judicial professionals to administer the Immigration Courts. Take Eyore out of the DOJ and turn him into an independent Article I Court.
The alternatives are grim — for our nation and for future generations! Wake up folks, before it’s too late!
🇺🇸 Due Process Forever!
PWS
07-24-22
