"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Bill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
From the EOIR website:
Garry Malphrus
Deputy Chief Appellate Immigration Judge
Attorney General William P. Barr appointed Garry Malphrus as a deputy chief appellate immigration judge in September 2020. Judge Malphrus earned a Bachelor of Arts in 1989 from the University of South Carolina and a Juris Doctor in 1993 from the University of South Carolina. From August 2008 to September 2020, he served on the Board of Immigration Appeals, Executive Office for Immigration Review, including as acting board chairman from October 2019 to May 2020. From 2005 to 2008, he served as an immigration judge at the Arlington Immigration Court. From 2001 to 2005, he served as associate director of the White House Domestic Policy Council. From 1997 to 2001, he worked for the U.S. Senate Committee on the Judiciary, which included serving as chief counsel and staff director on the Subcommittee on Criminal Justice Oversight and the Subcommittee on the Constitution. From 1995 to 1997, Garry served as a law clerk for the Honorable Dennis W. Shedd, U.S. District Judge for the District of South Carolina. From 1994 to 1995, he was a law clerk for the Honorable William W. Wilkins of the U.S. Court of Appeals for the Fourth Circuit. From 1993 to 1994, he was a law clerk for the Honorable Larry R. Patterson, Circuit Judge for South Carolina. Judge Malphrus is a member of the South Carolina Bar.
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No surprise here, folks, as Courtside had predicted this back in May:
This appears to be the “penultimate step” in the ongoing process of “benching” the long-time “holdover” Vice Chair Chuck Adkins-Blanch. First, he was “passed over” when Judge Malphrus became the BIA’s Acting Chair following the hasty departure of former Chair David Neal. Now, Malphrus basically has been “layered in” to be the “real Deputy,” who will faithfully continue to carry out Billy’s nativist political agenda, presumably until Adkins-Blanch reaches retirement and finally pulls the plug.
Needless to say, Judge Adkins-Blanch’s name has been conspicuously absent from the BIA’s most recent barrage of anti-immigrant, anti-asylum “precedents.” That is, of course, the “precedents” that Billy lets the BIA write as opposed to the ones that he and his fellow political hacks at “Main DOJ” issue as “AG precedents.”
More and more, the AG, whom nobody except, perhaps, a few intentionally tone-deaf Circuit Court of Appeals Judges, would mistake for an “expert” in immigration law, has taken over the BIA’s precedent setting function. That leaves the BIA basically to do the “mop-up work” of maximizing the impact of Billy’s anti-immigrant policies and insuring that just and fair results below favoring immigrants are reversed upon demand of “EOIR’s masters” at DHS Enforcement.
Talk about the need for an Article I Court with a new cast of characters selected on a merit basis for their demonstrated immigration expertise, and established commitment to due process, fundamental fairness, equal justice, human rights, and practical applied scholarship! That so many Article III judges continue to “go along to get along” with this vile legal charade says some pretty sad things about the overall state of justice and the judiciary in America!
An Article I Court requires judicial leadership that replaces “built to fail ‘Vatican Style’ (or “Legacy INS Style”) hierarchical bureaucracy” with professional court administration and a much “leaner and flatter” judicial structure. A judicial structure where most resources are devoted to actually fairly and efficiently deciding cases, establishing “best practices,” and leading by example. That would eliminate the “Mickey Mouse” demeaning “control freak supervision (“suppression”)” of supposedly senior level “judges” who, if properly selected, would need effective support, but little to no “supervision” in the normal bureaucratic sense of the term.
In the meantime, expect the backlog to grow unabated and the Article IIIs to continue to reverse and return an essentially random selection of the BIA’s reliably “one-sided” jurisprudence for “redos!” That will further increase the backlog without effectively addressing the fundamental problem of an unconstitutional system with a clearly established anti-immigrant political bias!
Just more signs of an Americanjustice system now in the throes of institutional failure!
To Trump and his core enablers and supporters, the laws of Trump Nation authorize him to do whatever he wants. Anti-Trump Nation’s laws constrain him, but they’re illegitimate because they are made and enforced by the people who reject him.
If he loses the election, Trump will not accept the result because it would be the product of Anti-Trump Nation
So Trump’s call to the president of Ukraine seeking help with the election was “perfect”. It was fine for Russia to side with him in 2016, and it’s fine for it to do so again. And of course the justice department, postal service and Centers for Disease Control and Prevention should help him win re-election. They’re all aiding Trump Nation.
By a similar twisted logic, Anti-Trump Nation is dangerous. Hence, says Trump, the armed teenager who killed two in Kenosha, Wisconsin, acted in “self-defense”, yet the suspected killer of a rightwinger in Portland deserved the “retribution” he got when federal marshals killed him.
It follows that if he loses the election, Trump will not accept the result because it would be the product of Anti-Trump Nation, and Trump isn’t the president of people who would vote against him. As he recently claimed, “The only way we’re going to lose this election is if the election is rigged.”
In the warped minds of Trump and his acolytes, this could lead to civil war. Just this week he refused to commit to a peaceful transition of power. His consigliere Roger Stone urges him to declare “martial law” if he loses. Michael Caputo, assistant secretary of public affairs at the Department of Health and Human Services, warns “the shooting will begin” when Trump refuses to go.
Civil war is unlikely, but the weeks and perhaps months after election day will surely be fraught. Even if Trump is ultimately forced to relinquish power, his core adherents will continue to view him as their leader. If he retains power, many if not most Americans will consider his presidency illegitimate.
So whatever happens, Trump’s megalomaniacal ego will prevail. America will have come apart over him, and Trump Nation will have seceded from Anti-Trump Nation.
Perhaps ironically, the pro-democracy, pro-health care, pro-environment, pro-jobs, pro-science, more fiscally responsible Government promoted by Biden & Harris will help “Trump Nation” much more than anything in Trump’s tiny and overwhelmingly negative book of “achievements.” Even the pre-pandemic economy that Trump and his cult like to tout was as at least as much Obama as Trump.
Vote like your life and our future depend on it. Because they do!
Justice Ruth Bader Ginsburg 1933-2020 Collection of the Supreme Court of the United States, Photographer: Steve Petteway Public RealmKaren Tumulty Political Columnist Photo: Rick Reinhard via Inter-American Dialogue Creative Commons License
In fact, McConnell’s actions are totally in keeping with the opportunism with which he has led the Senate. Given a chance, he will always abuse his power. Branding McConnell a hypocrite misses the point. Hypocrisy — coupled with an utter lack of shame — is not a character fault in his eyes. It is a management style, a means to an end.
[Obituary: Ruth Bader Ginsburg, Supreme Court justice and legal pioneer for gender equality, dies at 87]
And would we have expected anything different from Sen. Lindsey O. Graham (R-S.C.), the shape-shifting chairman of the Judiciary Committee?
Back in the days when he pretended to care about something more than sucking up to power, Graham used to say Republicans would have to live with what they had done to Obama’s 2016 nominee, Merrick Garland. In October 2018, shortly before taking the gavel of the committee that will consider Trump’s nomination, Graham promised: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”
Now — surprise! — Graham has promised, via Twitter: “I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.” His rationale, if you can dignify it by calling it that, is that Democrats did things that offended him. So it’s payback time.
Oh, and let’s consider the sanctimonious and pseudointellectual Sen. Ted Cruz (R-Tex.), whom Trump has said he would consider for future openings on the court. When running for president in early 2016, he loftily declared to NBC’s Chuck Todd: “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year. And what this means, Chuck, is we ought to make the 2016 election a referendum on the Supreme Court.”
What Cruz said wasn’t true, as is so often the case. There had indeed been instances of presidential nominees being confirmed during election years. In February 1988, a Democratic-led Senate voted 97-0 to put Ronald Reagan’s pick, Anthony M. Kennedy, on the court.
But this was only the beginning for Cruz. When it still appeared that Hillary Clinton would win in 2016, he also suggested that the court could get along just fine with only eight members indefinitely. Now — surprise! — Cruz is warning that having an even number of justices constitutes a “grave danger.”
. . . .
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Read Karen’s complete op-ed at the link at the link.
As political sage Willie Nelson would say: “Vote ‘Em Out, Vote ‘Em Out!”
The best, perhaps only, way to honor RGB’s legacy and life work is to remove from office the party of inhumanity, inequality, and unbridled corruption who would spit and stomp on her legacy, NOW! Think about the “cultists” running around in “Fill Her Seat” shirts! Do you want these “princes and princesses of darkness, ignorance, bias, racism, and institutionalized inequality” to be running YOUR nation and determining the future of YOUR children and grandchildren? Pull out all the stops, open your wallets, and tell all your family, friends, and neighbors to register and vote for Joe and Kamala. It’s clearly “the last stand” for American democracy and human decency as we envision it (but also a great opportunity to make America better by voting for Biden/Harris)!
Trump Regime Chad “Wolfman” Wolf Wanted for Impersonating a Cabinet Officer Creative Commons License Credit: DonkeyHotey at https://flickr.com/photos/47422005@N04/50216420106.
If you see this man, don’t approach! Call ACLU immediately!
(CNN)A federal judge in Maryland on Friday ruled that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security and temporarily barred the Trump administration from enforcing new asylum restrictions on members of two immigration advocacy groups, according to court documents.
“In sum, the Court concludes that Plaintiffs are likely to demonstrate (former acting Homeland Security Secretary Kevin) McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” Judge Paula Xinis’ 69-page ruling said.
Xinis also wrote that “by extension, because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged rules also ‘in excess of…authority,’ and not ‘in accordance with the law.'”
CNN has reached out to the department for comment.
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The preliminary finding that Wolf is likely unlawfully serving in his position came as a part of temporarily blocking two asylum rules while the lawsuit over those rules is heard. The case is ongoing.
CNN has previously reported that the Government Accountability Office found that Wolf and Ken Cuccinelli, the senior official performing the duties of deputy secretary, were appointed as part of an invalid order of succession.
. . . .
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Read the rest of the article at the link.
A cruel, inhuman, and lawless regime targets America and humanity with its illegal, inhuman, racist agenda, spearheaded by a dangerous “illegal.”
The case is Casa De Maryland, Inc. v. Wolf.
Due Process Forever. The “illegals” of the Trump regime never!
Don Ayer American Lawyer Former U.S. Deputy Attorney General — Photo www.ali.orgDahlia Lithwick Supreme Court Reporter Slate Wikimedia Commons — Public Domain
Has Bill Barr Broken the Department of Justice Forever?
Bill Barr is not simply doing the president’s bidding, he is following his long-held beliefs about America.
What is Bill Barr doing, and why is he doing it? Donald Ayer, former U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general under George H.W. Bush, on the attorney general’s ideology, how it predates Trumpism, and why it’s so dangerous.
In the Slate Plus segment, Mark Joseph Stern breaks down the latest voting breakdown in Wisconsin’s Supreme Court, the latest Census case dead end, and the stupidity of Trump’s latest SCOTUS list.
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How timely! Just yesterday on Courtside, I gave Billy the Bigot the nod over Jeff “Gonzo Apocalypto” Sessions and “John the Con” Mitchell in the hotly contested race for “The Worst AG in Modern American History.”
I still think that Gonzo could have pulled it out if he had only been given some more time! His overt racism, misogyny, intellectual dishonesty, fraud, stupidity, bias, and “crimes against humanity” set a standard for morally corrupt officials that seemed unassailable until Billy the Bigot went into “full destructo mode.”
As someone who started working at the DOJ in 1973, I witnessed (if only from the crowd standing outside the Great Hall) the “voluntary departure” of Elliot Richardson following the “Saturday Night Massacre,” where he resigned rather than carry out President T. Dick Nixon’s inappropriate demand that he fire the Watergate Special Prosecutor. Could you imagine Billy the Bigot refusing any demand from “His Don,” no matter how illegal, unethical, and/or outrageous? When it comes to the history of Government corruption and the DOJ, I know what I’m talking about.
Heck, I even survived long enough to get “purged” myself by Ashcroft in 2003, during my “DOJ reincarnation.” So, I’m no stranger to the imperfections and shortcomings in the supposed “independence” of the DOJ.
Nevertheless, I heartily agree with Don Ayer that the dishonesty, deceit, bias, bigotry, racism, and scofflaw attitudes installed into DOJ operations by Gonzo and Billy are light years beyond prior abuses I have witnessed during my nearly five decades in the law.
Don Ayer, my former DOJ colleague and partner at Jones Day DC, confirms what I have been saying for a long time on Courtside about Billy the Bigot’s unconstitutional and unethical control of the Immigration Courts.
Listen to this podcast and ask yourself: “How could any foreign national, particularly an asylum seeker, non-Christian, or person of color get a fundamentally fair and impartial hearing before ‘judges’ selected, directed, evaluated, and governed by Billy?” If that’s not enough, if the foreign national does happen to win, Billy just unilaterally intervenes and changes the results, even in cases completed back in the Bush II Administration!
Obviously, this isn’t justice; to use Don Ayer’s term, this is “Banana Republic” authoritarian injustice.
So, how have Congress and the Roberts-led Supremes let Billy get away with this disgraceful unconstitutional mockery of everything our nation stands for? Good question with no happy answer.
During Watergate, it took a concerted effort by a bipartisan Congress, the Federal Courts including the Supremes, and independent lawyers and investigators working for the Watergate Special Prosecutor within the DOJ to bring about Nixon’s forced resignation in the face of inevitable impeachment and conviction.
By contrast, today’s GOP Senate and the GOP-appointed “JR Five” on the Supremes have shown themselves to be shameless toadies, sycophants, and enablers in the face of clearly abusive Executive overreach and tyranny. The post-Watergate ethical reforms, checks, and balances put in place by former GOP-appointed AG Ed Levi, cited by Don, have been completely dismantled in broad daylight by the Trump regime with no pushback from Congress or the Supremes. This serious, entirely preventable, deterioration and abandonment of the rule of law and ethical norms cuts across all three Branches of Government and threatens the very foundations of our democracy.
Assuming (by no means a certainty) that our nation puts it together this Fall to remove the Trump kakistocracy, we need a careful and thoughtful re-examination of the types of individuals we are rewarding with life-tenured judicial appointments and why those now on the bench, as a group, failed so miserably to uphold the Constitution, protect human dignity and decency, and thwart the outrageous scofflaw agenda of Trump and his cronies like Billy the Bigot and neo-Nazi Stephen Miller.
Don Ayer specifically mentions the outrageous “Wall Charade” where Trump illegally and unethically steamrolled legislation, the Constitution, the public purse, and common sense to divert money to his “Political Wall” using a patently bogus and fabricated “national security” pretext.
But, here’s the rest of the story: When Trump-owned Solicitor General Noel Francisco presented this “false claim” to the Supremes, disingenuously asserting a clearly fabricated “emergency” he got the JR Five to roll over! Instead of upholding the lower court’s correct injunction and referring Francisco to bar authorities for unethical conduct, they actually approved this farce, by a 5-4 “party line vote.” Of course, that spineless performance has greenlighted other racist-driven White Nationalist policies and an aura of impunity among the Trump regime kakistocracy.
Gee wiz, a Federal Court actually determined some time ago that DHS honchos Chad “Wolfman” Wolf and Ken “Cooch Cooch” Cuccinelli are both illegally serving in their current positions. But, in the “no consequences no accountability” atmosphere established by the Roberts Court, Cooch and Wolfie continue to abuse migrants with arrogant impunity. They obviously have no fear of accountability. Even if they got in trouble, Trump would simply run over the Constitution to pardon them.
As I constantly say, “it’s not rocket science.” There are scores of talented courageous lawyers out there in the private, NGO, and academic sectors who could have out-performed the “JR Five” in protecting our republic. Why are they stuck in the trenches rather than sitting on the Federal Benches?
When Congress and the Executive fail, the nation turns to the supposedly independent Article III Courts as democracy’s last defender. But, Roberts & Co. have been more than “MIA” — they have actively contributed to the downfall with outrageous derelictions of duty on voting rights, civil rights, and grotesque, unconstitutional “Dred Scottifiction” of migrants of color that actually harms, maims, and kills innocent humans almost every day.
Think that “Dred Scottification” couldn’t happen to you? Guess again! Don Ayer says all of our freedoms and democratic norms will be on the line if Billy and “His Don” get another four years to complete their destruction. Believe him!
This Fall, vote like your life depends on it! Because it does!
Bill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license
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Says it all about Billy the Bigot. His “downward sprint to the finish” has rocketed him past “John the Con” Mitchell and Jeff “Gonzo Apocalypto” Sessions as the most corrupt AG in modern American history.
That’s, of course, not to minimize or trivialize the crimes committed by either of the other contenders. I suspect we’ll still be unpacking the full extent of Gonzo’s “crimes against humanity” decades from now, as the uglier and uglier truth about this “21st Century Jim Crow” dribbles out a bit at a time
Gee, even the “Afternoon Neighborhood Dog Walking Club” — comprised of neither lawyers nor hard core liberals, can’t understand why Barr, this walking, talking ethics cesspool is 1) still in office; 2) not in jail; and 3) still licensed to practice the law. Here’s hoping that all three of these unfathomable mysteries are resolved favorably to the public interest in the near future! In the meantime, Billy serves as a stark reminder of what’s wrong with legal ethics and our justice system at present.
With all the hard-working, talented, pro bono lawyers out there working overtime to save lives and our democracy, it’s simply a national disgrace and a travesty that unqualified, corrupt, unethical creeps like Billy and Gonzo have been “rewarded” with the an office that is supposed to function as “The People’s Lawyer.”
The Don’s felons and fellow conspirators against America get free passes; meanwhile, Americans of color can’t catch a break from a system loaded against them. Go figure!
In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.
TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.
Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.
Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.
Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.
TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.
Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.
Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”
Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure.Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”
What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!
Due Process Forever!
PWS
09-10-20
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Here’s an Addendum from Margaret Stock:
From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM] Sent: Saturday, September 12, 2020 10:17 AM To: Benson, Lenni B. Cc: Immprof (immprof@lists.ucla.edu) Subject: Re: [immprof] FW: The Life and Death of Administrative Closure
The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.
An outside expert who inspected an immigration detention center in Virginia that experienced a massive coronavirus outbreak is recommending that some high-risk inmates be released after finding flaws in the center’s screening procedures.
U.S. District Judge Leonie Brinkema ordered the inspection last month after several detainees filed a lawsuit with the help of legal activist groups. Brinkema faulted the detention complex in Farmville for an outbreak that affected more than 90% of the center’s nearly 300 detainees, including a 72-year-old detainee who died. Government officials fought unsuccessfully to block the inspection.
The expert, Homer Venters, inspected the site last month and filed a report made public Friday that says the center does a poor job of screening inmates for COVID-19 symptoms. He recommended that detainees at high risk for the disease be released.
The report cites “multiple and systematic deficiencies” in the complex’s health services and concludes that to be detained there “represents a significant health risk for high-risk patients.”
A report prepared by an expert hired by the detention center reached different conclusions. That expert, William Reese, said the biggest problem he saw was that detainees were refusing to wear masks. Given the inmates’ “lack of cooperation … it is remarkable that the facility has had no new positive tests among Detainees in nearly a month,” Reese wrote.
Venters, in his report, wrote that inmates dismissed staff entreaties to wear masks because they blamed the facility for getting them sick in the first place. The inmates also told Venters that they felt the masks were unnecessary since most everyone in the facility had already contracted the virus.
. . . .
At an earlier hearing, Brinkema criticized a “bureaucratic circus” for causing the outbreak, saying the center violated its own procedures by accepting 74 transfers from facilities in hot spot states Florida and Arizona without implementing any quarantine procedures.
A spokeswoman for Immigration and Customs Enforcement declined comment on the report, citing the ongoing litigation.
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Read the full report at the link.
Your taxpayer dollars at work, being used by DHS to abuse detainees and cover up Government wrongdoing.
We’ll see what Judge Brinkema makes of this absurdly dysfunctional, taxpayer funded mess. “Kakistocracy in action,” as veteran “DHS Watchers” say!
But, if the immigration justice system were functional, this problem would never have gotten to Judge Brinkema. A “real” Immigration Court, with fair, impartial, expert judges, free from political bias and interference, would have shut down most of the unnecessary and abusive DHS Gulag long ago. A real Appellate Division of that court would have established sensible nationwide precedents requiring release of vulnerable detainees to suitable placements.
Due process, fundamental fairness, and a truly independent and properly qualified judiciary that enforced them would save lives while promoting systemic efficiency. “Regime change” is an essential first step to saving our democracy. It starts in November!
The following is excerpted from “The Useful Idiot: How Donald Trump Killed the Republican Party with Racism and the Rest of Us with Coronavirus,” by S.V. Dáte.
A pandemic never occurred to them. The idea that Donald Trump would ever be required to sit still, pay attention and make rational decisions that would determine whether hundreds of thousands of Americans would live or die not once crossed the minds of those who put him into the Oval Office.
Oh, they all had their various reasons for wanting him there. For white evangelical Christians, he had explicitly promised to appoint the federal judges they had so longed for to turn back the nation’s cultural clock. For Mitch McConnell, a Trump win — as unlikely as it seemed — was the only real path to making sure Republicans retained control of the Senate and he himself remained majority leader. And for Vladimir Putin, having Trump in the White House — as unlikely as it seemed — would be a dream come true, an opportunity to wreak havoc on his longtime adversary and weaken its historic alliance with Western Europe.
Russia’s dictator, of course, was not remotely interested in what Trump’s ascension might mean for Americans in the event of an actual calamity. If they were dumb enough to vote for him, well, they deserved whatever they got. In any event, it was not his problem.
As for Trump’s American supporters, perhaps so much time had passed since Sept. 11, 2001, that the idea of a genuine national emergency was but a faded memory. Perhaps the quiet competence that President Barack Obama’s team had employed with the 2009 flu pandemic and later with the 2014 West African Ebola outbreak had diminished the perceived threat that a simple virus could present.
For whatever reason, even as they watched the noise and chaos and nonsense generated by candidate Trump for a full year and a half, the consequences of a real crisis requiring real leadership actually happening on the watch of a President Trump had never really dawned on them.
True, there existed then — and continues to exist today — a significant cadre of Republican voters who genuinely believed that the Trump they watched on “The Apprentice” was the real Donald Trump. That he was a real billionaire, based on his own efforts and smarts. That he was capable of making rational, quality decisions based on the facts presented to him.
That excuse, though, does not work for those Republicans from McConnell on down to the congressional candidates who had occasion to speak with Trump in person. As one top Republican National Committee member told me after his first face-to-face encounter with Trump two months before the 2016 election: “OK. Our guy is insane.”
His was not a minority view, by the way. Trump’s incoherence, his temper, his impulsiveness, his breathtaking ignorance — all of it was well-known among the top tiers of the Republican machinery. But for them, it was simply a challenge to overcome, another hurdle that fate had placed between them and their holy grail of judges and tax cuts and regulatory rollbacks. Not once did I ever hear any concern that just maybe they were working to install a useful idiot who truly was an idiot, with absolutely zero leadership qualities one ordinarily looks for in someone aspiring to become the chief executive of the world’s remaining superpower.
It was an abject failure of the Republican Party’s responsibility to the country. In our two-party system, both have a duty to weed out candidates who fail the threshold test of commander-in-chief and, relatedly, emergency-manager-in-chief. Through the summer and fall of 2015 and then the early nominating contests of 2016, it was clear as day that Trump was not credible in those roles, and yet neither the remaining candidates nor the party leadership made a serious effort to ensure his defeat.
True, there were some who voiced warnings. Jeb Bush called Trump a “chaos candidate” who would bring us a “chaos presidency.” But there was also Ted Cruz, who literally praised Trump for the better part of a year, refusing to criticize him in the hopes of one day inheriting his voters. By the time Cruz did unload on him, it was seen as sour grapes. Such was the cynicism and game-playing that put us where we are.
. . . .
****************
Read the full article at the link.
It’s what happens when immoral and unprincipled GOP politicos can’t tell the difference between a “useful idiot” and a “total blithering (racist) idiot.”
“It was an abject failure of the Republican Party’s responsibility to the country.” As usual, it’s left for the Dems and the majority of us to clean up the the GOP’s disgraceful (and fundamentally un-American) mess! That’s why in addition to expelling the “Clown Prince” it’s essential to remove the GOP and “Moscow Mitch” from their abusive and destructive control of the Senate!
Check out this page from “Caste: The Origins of Our Discontents” by Isabel Wilkerson:
“Caste” By Isabel Wilkerson Random House
Sound familiar? It should! Trumpism and Nazism share a common “core strategy:” Racism based on “dehumanization” of “the other” before the law — otherwise known as “Dred Scottification.” It’s in full operation by the Trump regime. And, most shockingly, a majority of our Supremes have “gone along to get along!” Very similar to the cowardly, complicit, and ultimately disastrous and deadly performance of the German judiciary in the face of Hitler’s racism!
There is no excuse for Trump, and there is no way that our our democratic republic can withstand another four years of his lies, bias, racism, “breathtaking ignorance,” corruption, cowardice, bullying, and “malicious incompetence!”
This November, vote like your life and future of the world depend on it! Because they do!
Vice President Mike Pence raised eyebrows with his latest praise of President Donald Trump, which critics described as “ridiculous” and “embarrassing.”
“I always tell people that to know President Trump is to know someone whose word is his bond,” Pence claimed Thursday during a “Life Wins!” event in Raleigh, North Carolina.
. . . .
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Read the full article at the link.
Perhaps what Mikey Moron meant to say is “whose word is as bogus as a $3 bill” (isn’t that the one with the Liar-in-Chief’s picture on the front?)
I actually think words like “ridiculous” and “embarrassing” are far, far too kind to this shameless butt-kisser, moral coward, incompetent executive, and betrayer of American democracy and human decency! He’s part of the “Evil Clown Show” ☠️🤮🤡 that has killed tens of thousands of American citizens as well as an untold number of refugees, asylum seekers, and other migrants, put innocent kids in jail, and caused unfathomable pain and suffering to name just a few of the gross misdeeds in which he has had a supporting role.
Has there ever in history been a more outlandish incumbent ticket of “proven malicious incompetency?”
This November, vote like your life and the future of our nation depend on it! Because they do!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round TableHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesLaura Lynch Senior Policy Counsel AILA
Ex-Immigration Judges Say NJ Court Risking Public Health
By Sarah Martinson
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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.
In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.
The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.
“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”
In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.
The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.
The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.
The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.
“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.
In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.
A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.
AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”
“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.
Counsel for the federal government declined to comment Wednesday.
AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.
NJ Immigration Attys Can’t Stop In-Person Hearings For Now
By Jeannie O’Sullivan
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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.
During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.
The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.
“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”
The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.
“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.
Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.
“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”
The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.
The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.
The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.
The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.
The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.
Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮
I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?
When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?
To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!
I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“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)
(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.
PANEL: MULLANE, KELLY, and GORMAN, Appellate Immigration Judges
OPINION BY: GORMAN, Appellate Immigration Judge
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30 days to file an application for asylum for an unrepresented, detained, non-English speaking applicant appearing by televideo, huh? “Full and fair hearing?” Only in the “Never Never Land” of EOIR in the 5th Circuit,
I can guarantee that this bogus “30-day-filing standard” will be used to railroad lots of hapless and clueless asylum applicants out without due process.
The good news: Outside the “Judicial Wasteland” of the Fifth Circuit, at least some reviewing Circuits likely will “blow the whistle” on this disingenuous nonsense and abdication of Constitutional duties and send the cases back to the meat packing plant (a/k/a EOIR) for redos, thus adding to the “Aimless Docket Reshuffling” and astronomical backlog.
There is actually a reason why fundamental fairness and competent court management are required by Due Process! In the long run, following the Constitution and the statute, as well as having “judges” with actual expertise, independence, courage, and some “practical common sense,” as opposed to EOIR’s endless “haste makes waste” enforcement gimmicks and one-sided, bias-driven judging, makes for a more efficient justice system for everyone. But, that will require a “full housecleaning” at EOIR.
“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!
Jacqueline Thomsen Courts Reporter National Law Journal & Legal Clairvoyant
Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:
. . . .
The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications
In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”
“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”
The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.
The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.
Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”
Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”
“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”
Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.
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Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?
If only more judges at all levels could write with such clarity and in plain English!
The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!
If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!
No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!
Here’s my favorite quote (among many) from Judge Leon’s decision:
Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.
The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”
Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days
I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!
Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.
Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.
Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).”
Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!
Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall.
Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America!Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency.One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.
Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies.
The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!
Great work, Eddie (and, of course artist Scott Scheidly for the enduring image of our “Clown Prince” reproduced, with permission, above)! Many congrats! Can’t see why the RNC rejected this masterpiece!
Another four years of Trumpism threatens not only the livelihood of hard-working professional clowns, but also is guaranteed to bring unnecessary suffering, lasting harm, and otherwise avoidable death to many. Perhaps you, your family, or your loved ones will be among the kakistocracy’s victims!
Better get out the vote for Joe, Kamala, and their better, more humane, more unifying program for America!
This November, vote like your life depends on it. Because it does!
