"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: Federal Labor Relations Authority (“FLRA”)
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
Melissa del Bosque reports for the Border Chronicle:
Both parties have doubled down on inhumane border policies, but it’s the GOP that is taking it to new depths in its race to the bottom over who can be more deliberately cruel.
It’s like some kind of grotesque Last Supper: In a publicity photo from last week’s press conference, Texas governor Greg Abbott is seated at the center of a long table surrounded by grim-faced White men, most of them elderly, in various postures of mental agita. Next to them is a large illustration on an easel board titled “Live Test of Attempt to Breach.” It shows a man with an inner tube (presumably an asylum seeker) clinging to a floating red buoy. Hundreds of these buoys Abbott announced, will be deployed on the Rio Grande near the town of Eagle Pass. The barrier will be 1,000 feet long, and its netting will extend underwater, catching anyone who tries to swim under it.
“We don’t want anyone to get hurt,” said Steve McCraw, head of Texas’s Department of Public Safety, at the June 9 press conference. “We want to prevent people from drowning.”
The floating buoy barrier will persuade people not to cross, he said. “This is to deter them from even coming in the water.”
But we already know this isn’t true. Both McCraw and Abbott were parroting the same strategy, known as “prevention through deterrence,” introduced in the mid-1990s during the Clinton administration. It has turned our southern border into a graveyard. After nearly three decades of militarized border buildup that has pushed people into increasingly deadly terrain like the Sonoran Desert, people haven’t stopped coming. But thousands of them have died.
As Todd [Miller] recently wrote in his poignant piece about this deadly strategy, “On the cusp of summer, we can predict like clockwork that hundreds of otherwise healthy people will be dead by summer’s end. It has an aura of premeditated murder.”
These floating barriers, which, according to the manufacturer’s website, can also be reinforced with spikes, will only contribute to an already-skyrocketing death count. Abbott’s latest announcement has already spurred many human rights organizations to sound a warning. Jenn Budd, a former Border Patrol agent and now border human rights activist, along with fellow Texas-based activist Marianna Treviño Wright, released a bilingual video warning migrants of the deadly new policy.
All-in on Fascism
Abbott has long toyed with the idea of running for president. While it increasingly looks less likely that he will, Florida governor Ron DeSantis has already joined the fray. And he’s all-in on fascism. When he’s not treating fellow human beings like FedEx packages, he’s modeling himself after Viktor Orbán, Hungary’s authoritarian leader, and darling of the CPAC circuit. Last week DeSantis released “B-roll” of Florida state troopers surveying the Texas-Mexico border as they participate in Abbott’s Operation Lone Star. I suspect they didn’t include any audio in the B-roll because it would humanize the children and adults waving to the troopers from the Mexican side of the river, detracting from DeSantis’s threatening narrative of an invading army.
DeSantis’s campaign video begins with a Texas DPS officer, who sports an official DPS seal on his tactical face covering, unlocking a tiny metal door surrounded by razor wire. This is next-level border security theater, as comical as it is utterly surreal and tragic. Several other Republican-led states are also, once again, sending troopers and National Guard soldiers to the Texas border—as they did before the 2022 midterm—to wage war against the Biden White House before the election. Unfortunately, it’s border communities and migrants who are caught in the crossfire.
For many years, I’ve documented border theater as it has ebbed and flowed depending on the political tide. But as I’ve been documenting in The Border Chronicle, we’ve reached an altogether different and deadly era of disinformation, with the GOP parroting invasion and great replacement rhetoric, and increasingly dehumanizing people, spurring mass shootings and political violence. This behavior is championed by a growing right-wing media ecosystem which in turn promotes more anti-democratic and extremist behavior.
I spoke with Sergio Muñoz, vice president of Media Matters for America, a nonprofit that has tracked conservative media for nearly two decades. I quoted Muñoz in a recent article, and wanted to include my full Q&A with him here. As Muñoz warns, the U.S. is in a “dangerous moment” as it approaches the 2024 presidential election.
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Read Melissa’s full report, including the interview with Sergio Muñoz at the above link.
Yes, “deterrence gimmicks” directed at refugees have a decades-long proven record of failure. You can just look at the efforts of the EU to “bar the door” to refugees from Africa and the Middle
East.
The boats continue to come, some sink, people drown. But, not surprisingly to those other than the “overprivileged and elitist White power class” like Abbott and DeSantis, desperate individuals forced from their homes are going continue to come — at any cost, even their own health, safety, and sometime lives.
Most would rather “risk it all” on a shot — even a very long shot — at stability and a real life, rather than facing the certainty of wasting away without hope, freedom, or opportunity and having to watch the same thing happening to younger generations. Some, against all odds, continue to believe that rich, powerfu Western countries like the U.S. will eventually live up to their solemn legal obligations to protect refugees and asylum seekers!
While, as Melissa cogently points out, these inane, yet deadly, gimmicks do kill migrants, they don’t do so at a high enough rate to materially affect the flow. It’s just causing pain, suffering, and sometimes death for their own perverted sake.
Apparently, neo-fascists like Abbott, DeSantis, Trump, and their “role model” Stephen Miller just “get off on” watching others suffer unnecessarily. Bullies and cowards often get a kick out of observing the effects of their handiwork.
Meanwhile, the public money being wasted on these cruel, yet ultimately ineffective stunts (remember former AZ Gov. Ducey’s shipping containers arrayed and then disassembled at government expense), could much, much better be spent on providing representation, organized resettlement, and humanitarian assistance to asylum seekers.
As Melissa says, the GOP’s (and sometimes, unfortunately the Dems’) “uber-enforcement/deterrence gimmicks are “as comical as [they are] utterly surreal and tragic.” It’s time for decent Americans to “just say no” to these horrible folks and their failed and deadly policies of dehumanization and degradation!
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Judge Amiena Khan, Past President, National Association of Immigration Judges (NAIJ)Hon. A. Ashley Tabaddor Past President, National Association of Immigration Judges (“NAIJ”)
From NAIJ President Judge Mimi Tsankov:
‘Finally, Some Justice for Immigration Judges Two-Year Union Busting Battle Ends as DOJ Reverses Course and Agrees to Recognize NAIJ’
Dear Friends of NAIJ,
We’re thrilled to announce that NAIJ has reached a settlement with EOIR: https://www.naij-usa.org/images/uploads/newsroom/NAIJ_Press_Release_on_ULP_Settlement.pdf. Thank you for standing by us over the past few years, especially, as we’ve stood up against the decertification effort. The unfair labor practice matters are now settled. What’s left for another day — resolution of the pending motion to reconsider awaiting a decision at the FLRA board.
Today, we celebrate this achievement, thank all those that have stood by us, and look forward to working with the Agency to improve working conditions at the Immigration Courts.
DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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Alexandra Villarreal Immigration Reporter The GuardianJoanna Walters Journalist The Guardian PHOTO: Twitter
Also, great coverage by Alexandra Villarreal and Joanna Walters from The Guardian:
Victory for US immigration judges as Biden administration recognizes union
Settlement comes after judges accused president of ‘doubling down’ on Trump’s position
In a stunning victory, US immigration judges have settled a tense dispute with Joe Biden’s administration over their effort to restore union rights taken away from them under Donald Trump.
Biden’s Department of Justice agreed on Tuesday to recognize the union as the exclusive representative for the nation’s immigration judges and follow the terms of their collective bargaining agreement, at least for the time being.
Days before reaching the settlement, the head of the federal immigration judges’ union had accused the Biden administration of “doubling down” on its predecessor’s efforts to freeze out their association even as they struggle with a backlog of almost 1.5m court cases and staff shortages, which exacerbate due process concerns in their courts.
Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), had declared herself “mystified” that Biden’s Department of Justice would not negotiate with her members despite the US president vocally and frequently touting his support for workers’ representation.
“This administration has really doubled down on maintaining the [Trump] position that we are not a valid union,” Tsankov said before the settlement.
Tsankov was appointed as an immigration judge in 2006 and is based in New York, where she also teaches at Fordham University School of Law. She spoke to the Guardian only in her union role.
After what she described as “decades” of relatively smooth relations between the NAIJ and the Department of Justice, Donald Trump capped four years of rightwing immigration policy by successfully petitioning to strip hundreds of immigration judges of their right to unionize.
The hostile move was decided by the Federal Labor Relations Authority (FLRA), an independent administrative federal agency that controls labor relations between the federal government and its employees, on 2 November 2020, the day before the presidential election.
Despite a Democratic victory and Joe Biden taking the White House pledging to undo damage done by Trump, the union remained shut out and silenced for more than a year, without a date set to hear its case attempting to restore its official status.
“I cannot understand it … Working together, as the president has stated, working with federal employees, working with unions, achieves better results,” said Tsankov.
Congrats to Judge Tsankov and former NAIJ Presidents Judge Amiena Khan, Judge Ashley Tabaddor, and all of the others who courageously and steadfastly fought against this scurrilous retaliation by Billy Barr directed against those with the guts and integrity to “speak truth to power” about the due process disaster in our Immigration Courts!
Yes, it’s a great victory for the NAIJ and “good government.” But, I’m with Judge Tsankov here: Why on earth did it take so much time and wasted effort for the Garland DOJ to finally “do the right thing?”
This should have been “day one stuff” for Garland — a true “no brainer.” The real “stunner” here is that it took so long!
The NAIJ was and remains “the only game in town” when it comes to expert professional judicial training @ EOIR! The rest of EOIR’s professionalism and training program could be characterized as a shambles — that is, if it actually existed, which it effectively doesn’t.
Compare EOIR “management’s” pathetic attempts at training with what the “real pros” at NAIJ and the VIISTA Program at Villanova (training for non-attorney reps) under Professor Michele Pistone have developed over the past year. There is no comparison — NAIJ and VIISTA win, hands down!
Yet, rather than harnessing this available energy, talent, expertise, and creativity, “Team Garland” has dawdled away the time, making few material inroads into the toxic culture and broken pieces of our Immigration Courts. Ask almost any practitioner how much their life and the lives of their clients in Immigration Court have “improved” under Garland! You’ll get an “earful” — as I do on occasion.
A new group of progressive practical expert leaders at EOIR should have made NAIJ, representatives of the private bar and NGOs, and representatives of ICE OPLA part of an “expert advisory team” working cooperatively to reform EOIR, institute merit-based hiring practices, and reduce the backlog without more wasteful gimmicks and in full compliance with due process.
Instead, most of the first year of Garland’s DOJ tenure has been wasted fighting battles that never should have been fought, irrationally alienating would-be allies who could have provided creative solutions to endemic problems, and engaging in yet more “Aimless Docket Reshuffling” even while continuing to build unnecessary backlog. The actual state of due process at EOIR has remained deplorable, morale at record lows, and the frustration and anger of attorneys subjected to Garland’s ongoing mess growing.
Even the “lowest of low-hanging fruit” — speedy approvals of applications for recognition and accreditation of non-attorney representatives involving graduates of VIISTA and other top NGO programs have been inexplicably allowed to languish. A process that should easily be completed in 30-60 days in most cases delayed for months, perhaps years, under unrealistically low staffing and “low priority” assigned by habitually negligent and unresponsive to public needs “EOIR Management.” This, at a time when there is a dire crisis in representation that VIISTA and other “top drawer NGOs” are fighting and innovating to solve.
(Remember, of course, that former EOIR Director James McHenry improperly “took over” the R&A program, which has become less, rather than more, functional and timely as a result. That’s a good measure of how inane EOIR “management” became under Trump. But, although McHenry is gone, it’s not that there has been drastic improvement under Garland. The lack at EOIR HQ of those who truly understand the Immigration Court process and could solve problems and “make the trains run on time,” without stomping on anyone’s rights, is simply mind-boggling!)
But, however bad EOIR is and remains, the “real buck stops with Garland” who has miserably failed to address in a timely, professional, systemic, rational manner the ongoing mess in his “EOIR Star Chambers!”
Belated re-recognition of NAIJ, while welcome, won’t solve this problem at Garland’s EOIR! — “Justice” Star Chamber Style, Public Realm — or this:BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
The public deserves better — much better!
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
EOIR Withdraws Opposition to
NAIJ Motion to Reconsider,
Does Not Oppose Motion to Remand
Judges:
In a filing this morning, EOIR withdrew its opposition to our motion to reconsider before the FLRA and agreed to a remand to the Regional Director. Here’s their brief.
This is a major step forward in our fight against the previous administration’s effort to decertify NAIJ. NAIJ thanks EOIR and DOJ for taking this important step.
EOIR’s actions come after NAIJ filed with the FLRA earlier this week a Motion to Remand and for Stay. NAIJ’s motion was part of a coordinated effort by NAIJ and our parent union IFPTE to bring the importance of the decertification issue to the attention of the highest levels of this administration. It looks like we succeeded.
Although there are many reasons for optimism, this fight is not yet over. The decertificaton matter remains pending before the FLRA. As we are well aware, the FLRA is still composed of the same members who, over a vigorous dissent, reversed the decision of the FLRA Regional Director who had previously upheld our right to unionize. We are closely monitoring the situation with our litigation team to assure this favorable progress continues until our case is definitively resolved, once and for all.
Thank you for your unwaivering support of NAIJ.
We will keep everyone updated with any further developments.
The NAIJ Board
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As pointed out by the NAIJ Board, it’s not over till it’s over! But, definitely a big step in the right direction for the NAIJ, the Garland DOJ, and the Biden Administration!
FULL DISCLOSURE: I am a retired member of the NAIJ!
Judge Amiena Khan, President National Association of Immigration Judges (NAIJ)
June 7, 2021
The Honorable Merrick Garland Attorney General
U.S. Department of Justice Washington, DC 20500
RE: Department of Justice Should Support the National Association of Immigration Judges and Withdraw the Petition to Decertify its Union
Dear Attorney General Garland,
We, the undersigned unions, organizations, immigration law professors and scholars, and other immigration court stakeholders call your attention to the urgent need to preserve and protect the National Association of Immigration Judges (NAIJ) and support collective bargaining by Department of Justice (DOJ) career civil servants. We are heartened by President Biden’s announcements on January 22, 2021, that both overturned his predecessor’s policies limiting employee rights to collectively bargain and also implement a wide-ranging policy to protect, empower, and rebuild the career federal workforce. President Biden’s announcements specifically encourage union organizing and collective bargaining.1
After four relentless years of union-busting, decisive leadership is needed to refortify the federal workforce. NAIJ and its 500+ bargaining unit members—immigration judges who are DOJ attorney employees—are in need of protection right now! NAIJ has been the collective bargaining representative for immigration judges since 1979. Yet, in 2019, the Trump administration filed a petition to strip immigration judges of their statutory right to be represented by a union and decertify NAIJ.
The Trump administration targeted NAIJ in retaliation for NAIJ’s criticism of both the unreasonable working conditions that DOJ managers imposed on its members and the sweeping curtailment of due process rights in immigration court.
While the decertification attempt was initially and thoroughly rejected in a decision by a career employee of the Federal Labor Relations Authority (FLRA), the decision was abruptly reversed
1 Executive Order 14003, on Protecting the Federal Workforce. 1
in a politically-motivated decision by the FLRA. That FLRA decision ignored the detailed fact-finding of the career employee and reversed long-standing FLRA precedent that 20 years earlier had found that immigration judges were not in a position to influence agency policy.
The FLRA decision is devoid of any reasoned analysis and creates an extremely dangerous precedent for professional workers throughout the federal government. Future administrations could wield this decision like a sword to preclude other professional employees such as physicians, scientists, engineers, and others from unionizing. Indeed, this ill-conceived anti-union precedent could have devastating repercussions for decades to come.
At this moment, a motion to reconsider is currently pending at the FLRA, and we call on the DOJ to withdraw its opposition to that motion, withdraw its decertification petition, and take all steps to restore collective bargaining rights for NAIJ members. President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union so that it can continue to represent its members in support of fair working conditions. Doing so will be a service to Immigration Court stakeholders and the public at large.
We seek your immediate review and leadership in this matter. Sincerely,
Amiena Khan
Amiena Khan, President
National Association of Immigration Judges
Unions: AFL-CIO
American Federation of Government Employees (AFGE), AFL-CIO American Federation of Government Employees (AFGE), Local 511
American Federation of Government Employees (AFGE), Local 3525
American Federation of State, County & Municipal Employees American Federation of Teachers
Asian Pacific American Labor Alliance, AFL-CIO
Association of Flight Attendants-CWA
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Communications Workers of America (CWA)
Department for Professional Employees, AFL-CIO
Federal Education Association
International Federation of Professional and Technical Engineers (IFPTE) International Union of Painters and Allied Trades
Labor Council for Latin American Advancement National Association of Government Employees National Education Association
National Federation of Federal Employees National Nurses United
National Treasury Employees Union
National Weather Service Employees Organization Patent Office Professional Association
Service Employees International Union (SEIU) The International Brotherhood of Teamsters UNITE HERE
United Mine Workers of America
United Power Trades Organization
Organizations:
African Services Committee
Alliance for Justice
American Immigration Lawyers Association AsylumWorks
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Bellevue Program for Survivors of Torture Brooklyn Law School Safe Harbor Project Catholic Labor Network
Catholic Legal Services, Archdiocese of Miami Catholic Legal Immigration Network, Inc. Center for Gender & Refugee Studies
Columbia Law School Immigrants’ Rights Clinic Disciples Immigration Legal Counsel
Florence Immigrant & Refugee Rights Project Immigrant Defenders Law Group
The Legal Aid Society
Migrant Center for Human Rights
Minnesota Interfaith Coalition on Immigration Mississippi Center for Justice
National Immigration Law Center
National Network for Immigrant & Refugee Rights The Right to Immigration Institute
Round Table of Former Immigration Judges
Law Professors and Scholars with Institutional Affiliation for Identification Purposes only:
Sabi Ardalan
Clinical Professor of Law
Harvard Immigration and Refugee Clinical Program Harvard Law School*
Roxana C. Bacon
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Adjunct Professor of Law Arizona State University* University of Arizona* University of Miami*
David Baluarte
Associate Clinical Professor of Law Washington & Lee University School of Law*
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law*
Lenni B. Benson
Distinguished Chair of Immigration and Human Rights Law New York Law School*
Matthew Boaz
Professor
Washington & Lee School of Law*
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law Brooklyn Law School*
Rose Cuison-Villazor
Vice Dean and Professor of Law Rutgers Law School*
Ingrid Eagly
Professor of Law
University of California Los Angeles School of Law*
Lauren Gilbert
Professor
St. Thomas University College of Law*
Lindsay M. Harris
Associate Professor & Director, Immigration & Human Rights Clinic University of the District of Columbia, David A. Clarke School of Law*
Katie Herbert Meyer
Associate Professor of Practice and Director of the Immigration Law Clinic Washington University*
Geoffrey Hoffman
Clinical Professor and Immigration Clinic Director
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University of Houston Law Center*
Alan Hyde
Distinguished Professor of Law and Sidney Reitman Scholar Rutgers Law School*
Erin Jacobsen
Professor and Director at Vermont Law School’s South Royalton Legal Clinic Vermont Immigrant Assistance
Vermont Law School*
Hiroko Kusuda
Clinic Professor and Director of Immigration Law Section
Loyola University New Orleans College of Law*
Stuart H. Smith Law Clinic and Center for Center for Social Justice
Vanessa Merton
Professor of Law
Immigration Justice Clinic Elizabeth Haub School of Law*
Karen Musalo
Professor and Founding Director, Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic
U.C. Hastings College of the Law*
Lori A. Nessel
Professor
Seton Hall University School of Law*
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Law Center*
Maria Mercedes Pabon Professor of Law
Loyola University New Orleans*
Carrie Rosenbaum
Lecturer in Legal Studies University of California, Berkeley*
Faiza Sayed
Visiting Professor of Clinical Law and Co-Director Safe Harbor Clinic
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Brooklyn Law School*
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law*
Elissa Steglich
Clinical Professor and Co-director Immigration Clinic University of Texas School of Law*
Mark E. Steiner
Professor of Law
South Texas College of Law Houston*
Enid Trucios-Haynes Brandeis School of Law University of Louisville*
Irene Scharf
Professor
Immigration Law Clinic University of Massachusetts*
Doug Smith
Lecturer in Legal Studies Brandeis University*
Paul Wickham Schmidt Immigrationcourtside.com
Erica B. Schommer
Clinical Professor of Law
St. Mary’s University School of Law*
Michael J. Wishnie
William O. Douglas Clinical Professor of Law Yale Law School*
*Institutional affiliation for identification purposes only
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FULL DISCLOSURE:I am a retired member of the NAIJ.
Thanks to my friend Judge Amiena Khan and the rest of her leadership group at the NAIJ for all they do to fight for due process for individuals in Immigration Court!
To date, Garland and his team have been busy defending Billy Barr’s and Trump’s corruption from legal accountability, appointing Barr’s hand-picked “judges” to their overtly non-progressive judiciary, attempting to intimidate the press (until the White House finally had to intervene), and carrying out pre-existing Stephen Miller inspired precedents and policies. Oh yeah, and engaging in their own mindless unilateral round of “Aimless Docket Reshuffling” (a/k/a yet another designed to fail “Dedicated Docket”) in Immigration Court while continuing to build on the pre-existing 1.3 million case backlog. They have also been occupied with ignoring every progressive and expert suggestion and NOT appointing progressives to leadership and judicial positions. Wow! That’s a very full plate (of unappetizing food)!
So, I’m not holding my breath for a favorable response to the latest request for the injection of some legality, common sense, and decency into EOIR. Nor am I expecting Biden and Harris to honor their commitment to Federal Employee Unions, after watching their performance to date on immigration and human rights. Additionally, given the continuing abysmal performance of EOIR and its ongoing waste and incompetence, I doubt whether they want any “internal critics” speaking truth to power.
So far, Garland is on course to be “Billy Barr, Jr.” While that might help Barr to avoid legal accountability for his corrupt administration of justice @ Justice, it’s not so good for progressives who would like to see (and once believed they would see) some “justice from Justice” particularly for racial minorities, women, children, asylum seekers, and other migrants.
They also would like to see at least minimally professional and respectful treatment of those appearing and representing individuals in Immigration Court. While Garland, Monaco, Gupta, and Clarke are all being paid comfortable “top of the line” USG salaries for ignoring long-overdue progressive reforms @ EOIR, many attorneys representing individuals in their “Star Chambers” are operating pro bono or low bono in their attempts to keep Garland’s failing and flailing system afloat.
Just more reasons why we need an independent Article I Immigration Court to deliver due process, racial, and gender justice to individuals, regardless of status.
Lowering The Barr by Randall Enos, Easton, CT Republished By License. Guess Garland forgot to flush!
Honorable Mimi Tsankov U.S. Immigration Judge Chair, Diversity, Equity, and Inclusion Committee Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee National Association of Immigration Judges (“NAIJ”)
Special Rapporteur on the Independence of Judges and Lawyers United Nations Office of the High Commissioner for Human Rights Palais des Nations
1211 Geneva 10
Switzerland
Dear Honorable García-Sayán,
Thank you for the opportunity to respond to the Questionnaire on Gender Equality in the Judiciary.
I am writing in my capacity as Chair of the Diversity, Equity, and Inclusion Committee of the National Association of Immigration Judges (NAIJ). I am currently seated at the New York Federal Plaza Immigration Court. Hon. Brea Burgie and I co-chair the NAIJ Gender Diversity, Equity, and Inclusion Subcommittee.
Organizational Background
By way of introduction, NAIJ is a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the United States Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.
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The focus of the NAIJ Diversity, Equity, and Inclusion Committee is to identify underrepresented groups of association members and remove or reduce unconscious biases with respect to such underrepresented groups. We facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for our judges.
Need for Judicial Independence
Our courts are in need of reform due to unprecedented challenges facing the Immigration Courts and Immigration Judges. This is particularly important, because achieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.
The Immigration Court suffers from an inherent structural defect as it resides in a law enforcement, Executive branch agency – the U.S. Department of Justice (DOJ). The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system. Immigration Judges make life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 538 Immigration Judges in the United States are responsible for adjudicating almost 1,300,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. Many of the individuals brought into proceedings do not have attorneys to represent them despite the fact that the DHS is always represented by attorneys because they have no right to appointed counsel. In contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.
The problems compromising the integrity and proper administration of a court underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger agency with competing needs; and eliminating top-heavy agency bureaucracy.
In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most Immigration Judges and attorneys agree the long-term solution to the problem is to restructure the Immigration Court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and
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the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded. To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal would remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions of an adjudicative nature that are currently being performed by the judges and appellate Board members in the Executive Office for Immigration Review.
Questionnaire Response
As of May 19, 2021, there are 538 Immigration Judges (including supervisory Immigration Judges). Of those 313 (or 58.2%) are male and 225 (or 41.8%) are female. Of the 40 Immigration Judges who serve in supervisory/leadership roles, 17 (or 43%) are female. There are 23 Appellate Immigration Judges. In line with international trends where there is more parity for judges overall, but less for high-ranking judicial officers, seven of the Appellate Immigration Judges (or 30%) are female. Currently, EOIR has a female acting agency Director, but the agency has never had a permanent female head. Therefore, while EOIR is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.
During the period 2008 – 2013, the agency identified as a clearly articulated strategic objective the hiring of candidates reflecting gender diversity. We are not aware of an updated strategy for addressing this objective. It is our view that when an agency is helmed by largely homogeneous leaders, there is a lack of varied perspectives which inhibits innovation and insights, workers’ morale suffers, the organization becomes less able to attract and retain top talent, fewer diverse career officials are promoted to management positions, and the problem becomes self-perpetuating. This condition also provides fertile ground for implicit bias to take hold and flourish, infiltrating future recruitment, as well as implicating the decisions we render in the individual cases which come before us.
The Biden administration has made diversifying the federal workforce, including at DOJ, a top priority. We are hopeful that more work will be done in the months ahead to support greater gender parity in judicial roles throughout the agency and the Immigration Court. More flexible workplace options are needed, including expanded telework and flexible working hours, which have proven to be workable and effective during the pandemic. As numerous studies have shown, women bear an overwhelming majority of caretaking responsibilities: for children, elderly parents, and family members who need additional care. Ensuring continuation of the flexible policies the Department of Justice adopted during the pandemic would ensure that more women could take roles as Immigration Judges, or stay in that role long-term, and keep a healthy work-life balance.
In regard to promoting female leadership at the highest levels of EOIR, the agency needs to examine the work culture that is rigid rather than flexible in addressing the unexpected needs of employees, and expects individuals to work long hours and be available to work evenings and weekends. This culture excludes many women who may otherwise bring valuable contributions to top-level agency positions.
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We appreciate your time, and attention to this issue. Sincerely,
Mimi Tsankov
Hon. Mimi Tsankov
Chair, Diversity, Equity, and Inclusion Committee
Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee
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FULL DISCLOSURE: I am a retired member of the NAIJ.
Many thanks to my friend Judge Mimi Tsankov (who also serves with me on the ABA’s National Conference on the Administrative Law Judiciary) for bringing this to my attention.
As Judge Tsankov points out, there has been some progress toward “gender equity” in terms of overall profile. However, in my view, this has been more than offset by 1) the “single sourcing” of judicial appointments to basically discourage and exclude progressive experts, advocates from the private sector, and those with backgrounds in advancing human rights and immigrants’ rights; and 2) constant political interference from the DOJ (under both parties) to promote their political agendas, usually anti-due-process, anti-immigrant, anti-asylum-seeker, and pro-enforcement, with definite overriding racialand nationalist overtones.
Indeed, the sad situation of the NAIJ itself — bogusly “decertified” by “Billy the Bigot” Barr as “punishment” for exercising First Amendment rights, exposing waste and bias, and “daring to speaktruth to power” speaks for itself. To date, despite the Biden Administration’s claim to be supportive of the rights of Government employees, Garland has allowed the NAIJ (not to mention asylum seekers and other migrants) to continue to “twist in the wind.”
It’s also worth noting that the NAIJ is the only entity providing meaningful due process and anti-bias training to Immigration Judges. Indeed, it is the only entity providing any type of useful professional training and continuing judicial education at EOIR!
The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.
As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.
Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.
“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.
Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.
Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.
Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.
. . . .
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Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence” —at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.
This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda.
Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” — few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA — continued unabated.
Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up!
Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!
To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director.
Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.
Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!
FULL DISCLOSURE: I am a proud retired member of the NAIJ!
WASHINGTON — When President Biden swore in a batch of recruits for his new administration in a teleconferenced ceremony late last week, it looked like the country’s biggest Zoom call. In fact, Mr. Biden was installing roughly 1,000 high-level officials in about a quarter of all of the available political appointee jobs in the federal government.
At the same time, a far less visible transition was taking place: the quiet dismissal of holdovers from the Trump administration, who have been asked to clean out their offices immediately, whatever the eventual legal consequences.
If there has been a single defining feature of the first week of the Biden administration, it has been the blistering pace at which the new president has put his mark on what President Donald J. Trump dismissed as the hostile “Deep State” and tried so hard to dismantle.
From the Pentagon, where 20 senior officials were ready to move in days before the Senate confirmed Lloyd J. Austin III as defense secretary, to the Voice of America, where the Trump-appointed leadership was replaced hours after the inauguration, the Biden team arrived in Washington not only with plans for each department and agency, but the spreadsheets detailing who would carry them out.
A replacement was even in the works for the president’s doctor: Dr. Sean P. Conley, who admitted to providing a rosy, no-big-deal description of Mr. Trump’s Covid-19 symptoms last year, was told to pack his medical kit. While all presidents eventually bring in their own doctor, Mr. Biden wasted no time bringing back a retired Army colonel, Dr. Kevin O’Connor, who was his doctor when he was vice president.
Mr. Biden had named nearly all of his cabinet secretaries and their immediate deputies before he took office last Wednesday, most of them familiar faces from the Obama administration. But the president’s real grasp on the levers of power has come several layers down.
. . . .
Ashley Tabaddor, a constant critic of the Trump administration as the former head of the union that represents immigration judges, will take over as chief counsel at U.S. Citizenship and Immigration Services, the federal legal immigration agency.
At the Justice Department — where morale was largely decimated and Biden administration officials are eager to begin reversing Trump policies on civil rights, immigration and police oversight — all of the department’s top incoming acting department heads are alumni, some of whom worked under multiple administrations.
Until Judge Merrick B. Garland is confirmed as attorney general, Monty Wilkinson, a longtime career employee who worked closely with Eric H. Holder Jr. when he was attorney general, is serving in an acting capacity.
The acting deputy attorney general is John P. Carlin, who ran the national security division of the Justice Department during the Obama administration. He is holding the office only until Lisa Monaco, who has worked closely with Mr. Carlin over the years, can be confirmed as deputy attorney general. She served as homeland security adviser under Mr. Obama and, during the Trump years, she and Mr. Carlin ran a group studying the hardest issues in cyberpolicy.
Much as the politicization of the Justice Department angered Mr. Trump’s critics, the neutering of the Environmental Protection Agency prompted outrage from progressives, and it is probably no surprise that the agency is already in the throes of transformation.
. . . .
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Read the complete article at the link.
Trump spent his first week in office spouting lies about the size of his inauguration crowd and launching a White Nationalist assault on Muslim refugees. Biden came in with a detailed plan for governing America and is putting it into effect on multiple fronts notwithstanding the crises and absolute mess left behind by the defeated kakistocracy!
The Biden-Harris plan reflects three truths:
Government is a powerful force for the common good;
Most governing takes place at the “retail level;” and
Competence, honesty, and courage count.
The Tabaddor appointment is a powerful signal to civil servants who stand up for their rights and the rights of others. Judge Tabaddor undoubtedly is one of the most talented, dynamic, and capable leaders at any level of the Federal Judiciary. But, that didn’t protect her from the DOJ/EOIR bureaucracy.
During the Trump regime, she led the effort of the National Association of Immigration Judges (“NAIJ”) to expose bias and political interference with judicial functions, gross mismanagement, disregard for due process, and suppression of First Amendment free speech by the DOJ/EOIR kakistocracy.
“Billy the Bigot” Barr & his toady McHenry punished the NAIJ by filing to “decertify” the union — a move to silence Judge Tabaddor and her her colleagues and deflect Congressional attention from the ongoing chaos and dysfunction the Trump DOJ had created in the Immigration Courts.
Apparently, somebody on the Biden Team was paying attention to this travesty, recognized the grotesque abuses going on at the EOIR Clown Show🤡, and the courage and leadership shown by Judge Tabaddor in the battle for integrity and“good government.”
So far, so good. Looks like the “EOIR Clown Show”🤡 is finally “going to go” and be replaced with real judges and pros in judicial administration who will refashion it into a real, functioning, due-process-oriented, model court system that will compliment the legislative initiative to create an independent Article I U.S. Immigration Court of which we all can be proud.
“Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all!” Still the “right vision.” And with the right judicial leadership and judges who are experts in human rights, immigration, and “applied due process” it can become a reality!
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
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Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Alejandro Mayorkas DHS Secretry – Designate Official DHS Photo Public Domain
Mayorkas, currently a partner at Wilmer Hale, was Deputy DHS Secretary under Obama from 2013-2016. If confirmed, he will be the first Latino to hold the post.
He helped design and implement DACA, certainly the most rational, cost effective, and astoundingly successful Executive immigration initiative of the 21st Century. But, then, there was not really much else to choose from in two decades of largely wasteful, counterproductive, “designed to fail uber enforcement” from all Administrations.
On one level, Mayorkas faces “mission impossible”” — reform an agency without mission or recognizable humane values that has been totally out of control over the past four years and has shown that it is infected with institutionalized racism, hate, ignorance, disrespect for the rule of law, rampant unprofessionalism, and overt political corruption at every level.
But, on another level it should be easy for Mayorkas to look good! Following the early departure of Gen. John Kelly, who looked pretty good on paper but showed neither the inclination to understand immigration policy nor the willingness to buck Trump, the agency has been “run” by a succession of toadies and war criminals. The current (NOT) Acting Secretary Chad “Wolfman” Wolf, a “super-hack,” is totally unqualified for the job, and also happens to be serving illegally in an “acting capacity.” That’s an easy act to follow!
Just by respecting the Constitution and the law, simply refraining from overt lying, racism, committing crimes against humanity, and child abuse, and wasting less taxpayer money on stupid walls, detention, and counterproductive “civil” enforcement, Mayorkas will be perceived as a “breath of fresh air” by many long-suffering members of the immigration and human rights community, even if he never accomplishes much else.
Expectations were extraordinarily low for the Trump regime. But, his “chosen toadies and scofflaws” consistently performed far below even our worst fears, demonstrating exceptional “malicious incompetence” at virtually all aspects of their jobs. DOJ and EOIR are by no means the only rings under the “Big Top” 🎪where the deadly “clown show” 🤡 has been in continuous performance for the past four years!
Due Process Forever. Let the Biden Team Know That The Clown Show 🤡 Must Go!
Polly A. Webber: Muzzling America’s Immigration Judges is a Travesty
Polly A. Webber, Nov. 19, 2020 – Muzzling America’s Immigration Judges is a Travesty
“It can’t be much of a surprise that I should have deep insight and strong feelings about the current state of our Immigration Courts, after more than forty years working in immigration law, twenty-one of them as an Immigration Judge appointed by Attorney General Janet Reno in 1995. Having retired in 2016, the issues I noted have become radically more pronounced and dire.
What do children in cages, refugee camps in Mexico, TV judges, lengthy delays and erratic scheduling have in common? They are all a part of the new look of the Trump Immigration Court, a shift in style and substance that is extraordinarily dismaying in many of its aspects. The Immigration Court is not an independent judicial tribunal. It is housed in a small agency within the Department of Justice (DOJ). Because of that placement, the Court has been plagued by a conflicted, dual identity, aspiring to be an independent tribunal while housed in law enforcement. It was only a matter of time before this politicized enforcement branch infected the Court.
Immigration Judges were recognized in 1979 as a collective bargaining unit called the National Association of Immigration Judges (NAIJ). Why did the judges feel a need to seek the protection of a labor organization? Quite simply, almost none of the people managing the huge bureaucracy of the Court actually spend any time in courtrooms. These high-level policy makers often have no practical knowledge of how the Court functions, and this defect has persisted through multiple political administrations. The DOJ issues policy and practice memoranda that bind judges without consulting them about their practical impact. Thus, a need arose for collective bargaining to assure input from the judges who implement these edicts.
On November 2nd, in an action by DOJ to decertify NAIJ, the Federal Labor Relations Authority (FLRA), remanded the action back to the Regional Director for a final decision, finding that Immigration Judges influence policy and are thus managers. That notion is laughable. Applying established law to a particular case is not influencing policy. Virtually every decision the judges make is subject to review and reversal by higher courts. Generally, judges are under the thumb of DOJ, ignored or ridiculed by leadership. It has gotten far worse for my colleagues after I left at the end of 2016.
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Read the rest of Polly’s article the link!
Given the grotesque level of malicious incompetence from DOJ and their EOIR toadies, it’s no wonder they want to suppress the truth about the ugly mess in the Immigration Courts. The Falls Church Clown Show 🤡 is coming to an end!
The Outrageous Decision to Decertify the IJ’s Union
Our attention is understandably focused elsewhere right now. However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union. While this might seem to be a minor issue at the moment, it is not. At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.
The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago. It weathered a similar decertification effort in 2000. Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize. Under federal labor law, one is classified as a manager if their position “influences policy.” 20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion. In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy. The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”
In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novoreview, their findings of fact are now reviewed for clear error. Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy. So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification. At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision. As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.” Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.
The Regional Director dismissed the claim based on the above arguments and testimony. But there was always a sense that the administration had something up its sleeve. That “something” turned out to be two Trump appointees, FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott. They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them. The two stayed true to form in decertifying the NAIJ. The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion in the NAIJ’s case, which concluded with the following language:
This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”
By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.
First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach. Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards). As several leading scholars explained in an article in Slate: “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”
But of great importance is a point I raised last year in an article I wrote forLaw360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:
while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ. In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views. Such actions would constitute a troubling attempt by the executive branch to influence case outcomes. Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.
Just prior to the FLRA’s decision, an executive order creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views). By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order. To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.
While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant. First, the earlier decertification effort in 2000 occurred under a Democratic administration. Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration. Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.
The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term. It is therefore hoped that readers will amplify the news of the decision and all it means. It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision. And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct
There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration. FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent. But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.
Copyright 2020 Jeffrey S. Chase. All rights reserved. reprinted with permission.
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Thanks for speaking out so forcefully and articulately, my friend,
I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Here’s a message Judge Tabaddor sent to all Immigration Judges:
Subject: Update on Agency Action to Decertify NAIJ
THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
November 3, 2020
Dear Colleagues,
Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”
This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.
We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.
Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.
As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.
Ashley Tabaddor
President, NAIJ
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Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court!
Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!
