"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.
In a November 16 memo to immigration judges, EOIR’s Director, James McHenry, announced that after a nearly two-year reprieve, “Family Unit” cases are again being prioritized, under conditions designed to speed them through the immigration court system, ready or not, with or without representation, due process be damned.
“Family Unit” is a term created by the Department of Homeland Security as an “apprehension classification” which consists of an adult noncitizen parent or legal guardian, accompanied by his or her own juvenile noncitizen child. Of course, many of the highly-publicized cases of children separated from their parents at the border fall within this category.
Under the new procedures, all Family Unit (or in EOIR parlance, “FAMU”) cases must be completed within 365 days of the commencement of removal proceedings. Just as a point of comparison, many immigration judges in New York are presently setting non FAMU cases for hearings in late 2021. So EOIR wants FAMU cases to be completed in a third of the time of other cases.
In order to accomplish this, such cases (at least in the New York court) are to be scheduled for their first Master Calendar hearing before an immigration judge within 30 days of the court’s receipt of the charging document that commences proceedings. The parent and child are then to be given only one continuance of 40 to 45 days in order to try to obtain counsel. After that, the cases are to be set for a final merits hearing another five to six months out. That only adds up to about 8 months, I imagine to allow another four month “safety zone” just in case. Immigration judges are further directed to make sure they complete the cases in 365 days, and to get them done as soon as possible.
To further increase the odds of success, the FAMU cases are being assigned to brand new immigration judges, for the following reasons. First, the new judges are mostly former ICE prosecutors. Secondly, the new judges are on probation for two years, making them more likely to obey rules in a desire to keep their jobs. The new judges have also just been through training at which they were instructed by the Attorney General that sympathy has no place in their work, that those fleeing domestic violence and gang violence are undeserving of asylum, and that it is more important for them to be efficient than fair.
Judges are expected to bump non-FAMU cases if necessary to meet the completion goals. In other words, those who have patiently waited three years or longer for their day in court, and who have their evidence and witnesses lined up in the hopes of finally obtaining legal status in this country, now run the risk of having their hearings bumped for who knows how much longer in order to speed through the case of a parent and child who likely need more time to obtain counsel and prepare their claims.
I have checked with legal service providers in New York City, and have been told that the 40 to 45 days being provided by EOIR is generally not a sufficient amount of time for the respondents in such cases to retain counsel. Outside of large cities like New York, this time frame is even less realistic, due to the fewer number of NGOs receiving funding to do this type of work.
The new policy therefore lessens the likelihood that families will be able to be represented in their removal proceedings. Unfortunately, recent changes in the law achieved through the certification of cases by the Attorney General (which has continued even under interim AG Whitaker) has made the need for legal representation far more important. It is a daunting task for an unrepresented victim of domestic violence to clearly state a detailed particular social group, defined by an immutable characteristic (but not by the feared harm), and establishing the group’s particularity and social distinction in society; to then establish that the persecutor was motivated by her membership in such group; and then demonstrate both that the government was unwilling or unable to protect her and that she could not reasonably relocate within her country
As I noted in an earlier blog post, https://www.jeffreyschase.com/blog/2018/1/26/0sg8ru1tl0gz4becqimcrtt4ns8yjz the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28 that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” So the above requirements for particular social group claims are essentially an obstacle course that someone who is already a refugee must negotiate in order to have our government grant them the legal status to which they are entitled. The recent AG decisions have increased the difficulty of the course, and the new FAMU directive will mean that these most vulnerable refugees will have to negotiate the course at breakneck speed, and likely without the assistance of counsel. It bears noting that whatever particular social group definition the asylum-seeker offers the judge is crucial; if it contains one word too many or too few, pursuant to a recent BIA precedent decision, it cannot be corrected on appeal, even if by that stage the applicant has managed to procure representation.
Through these methods, the present administration is playing a game which will result in fewer grants of asylum. The lower grant rate will then allow the administration to claim that those seeking refuge at our southern border are not really refugees, which in turn will allow them to create even greater obstacles, which will in turn lead to even fewer asylum grants.
As a former immigration judge, I can say with authority that it takes time and effort to reach the correct result in these cases; furthermore, the accuracy of asylum decisions greatly increases with the involvement of those with knowledge of the legal requirements. In its speed over accuracy approach, and its gaming of the system to deny more asylum claims for its own political motives, the present administration is telling refugee families that only the first and last letters of “FAMU” apply to them.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
I haven’t posted for a while. I’ve been extremely busy, but there was something else: my response to so many recent events has been just pure anger. Although I’ve written the occasional “cry from the heart,” I don’t want this blog to turn into the rantings of an angry old man.
So I resume posting with a case that provides a glimmer of hope (and, hopefully, a hint of things to come?). Last week, the U.S. Court of Appeals for the Eleventh Circuit, a court generally known for its conservatism, issued an order granting an emergency stay of removal in the case of Manuel Leonidas Duran-Ortega v. U.S. Attorney General. As is common in such types of grants, the three-judge panel issued a decision consisting of two sentences, granting the stay, and further granting the request of interested organizations to allow them to file an amicus (“friend of the court”) brief.
What made this decision noteworthy is that one of the judges on the panel felt the need to write a rather detailed concurring opinion. Among the issues discussed in that opinion is the impact of the Supreme Court’s decision in Pereira v. Sessions (which I wrote about here: https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court) on Mr. Duran-Ortega’s case. As in Pereira, the document filed by DHS with the immigration court in order to commence removal proceedings lacked a time and date of hearing. In her concurring opinion, Judge Beverly B. Martin observed that under federal regulations, jurisdiction vests, and immigration proceedings commence, only when a proper charging document is filed. The document filed in Mr. Duran-Ortega’s case purported to be a legal document called a Notice to Appear. But as Judge Martin noted, “The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time or place are not, in fact, notice to appears” within the meaning of the statute.
Judge Martin (a former U.S. Attorney and Georgia state Assistant Attorney General) continued that the Pereira decision “emphasized” that the statute does not say that a Notice to Appear is “complete” when it contains a time and date of the hearing; rather, he quotes the Pereira decision as holding that the law defines that a document called a “Notice to Appear” must specify “at a minimum the time and date of the removal proceeding.” The judge follows that quote with the highlight of her decision: “In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceeding.”
As this Reuters article reported (https://www.reuters.com/article/us-usa-immigration-terminations/u-s-courts-abruptly-tossed-9000-deportation-cases-heres-why-idUSKCN1MR1HK) enough immigration judges had a similar reading of Pereira to terminate 9,000 removal cases in the two months between the Supreme Court’s decision and the issuance of a contrary ruling by the Board of Immigration Appeals, in which the BIA’s judges, out of fear of then-Attorney General Jeff Sessions, chose appeasement of their boss over their duty to reach fair and independent decisions.
Judge Martin referenced that BIA decision, Matter of Bermudez-Cota, but stated: “This court need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law…In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.”
For those readers who are not immigration practitioners, attorneys with ICE (which is part of the Department of Homeland Security) and the Office of Immigration Litigation (“OIL”) (which is part of the Department of Justice, along with the BIA) have been filing briefs opposing motions to terminate under Pereira using language best described as snarky. A recent brief fled by OIL called the argument that proceedings commenced with a document lacking a time and date must be terminated under Pereira “an unnatural, distorted interpretation of the Supreme Court’s opinion,” and a “labored interpretation of Pereira.” A brief recently filed by ICE called the same argument an “overbroad and unsupported expansion of Pereira [which] is unwarranted and ignores the Court’s clear and unmistakable language.”
There is an old adage among lawyers that when the facts don’t favor your client, pound the law; when the law doesn’t favor your client, pound the facts; and when neither the law nor the facts favor your client, pound the table. I find the tone of the government’s briefs as sampled above to be the equivalent of pounding the table. The government is claiming that to interpret the Supreme Court’s language that “a notice that lacks a time and date is not a Notice to Appear” as meaning exactly what it says is an unnatural, distorted interpretation that is labored and ignores the clear language of the Court. The government then counters by claiming that the natural, obvious, clear interpretation is the exact opposite of what Pereira actually says.
So although it is just the view of one judge in one circuit in the context of a concurring opinion, it nevertheless feels very good to see a circuit court judge calling out the BIA, OIL, and DHS on their coordinated nonsense. Three U.S. district courts have already agreed with the private bar’s reading of Pereira, in U.S. v. Virgen Ponce (Eastern District of Washington); in U.S. v. Pedroza-Rocha (Western District of Texas); and just yesterday, in U.S. v. Soto-Mejia (D. Nev.). At this point, this is only cause for cautious optimism. But as an immigration lawyer named Aaron Chenault was articulately quoted as saying in the above Reuters article, for now, Pereira (and its proper interpretation by some judges) has provided “a brief glimmer of hope, like when you are almost drowning and you get one gasp.” Well said.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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UNITED STATES OF AMERICA, Plaintiff, v. RAUL SOTO-MEJIA, Defendant.
Case No. 2:18-cr-00150-RFB-NJK
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
December 6, 2018
ORDER
Before the Court is Mr. Soto-Mejia’s Motion to Dismiss [ECF No. 21] the Indictment in this case, for the reasons stated below the Court GRANTS the Motion to Dismiss.
I. Factual Findings
Based upon the record, including the joint stipulation of fact submitted by the parties [ECF No. 41], the Court makes the following factual findings. Mr. Soto-Mejia was encountered by immigration officials on February 7, 2018 in California. On that same day, February 7, the Department of Homeland Security issued a Notice to Appear for Removal Proceedings (NTA) against Soto-Mejia. The Notice to Appear stated that Soto-Mejia was to appear before an immigration judge on a date and time “[t]o be set” and at a place “[t]o be determined.” Soto-Mejia was personally served with the Notice to Appear at 10400 Rancho Road in Adelanto, California, 92401. The Notice to Appear contained allegations and provided a potential legal basis for Soto-Mejia’s removal from the United States. The Notice to Appear was filed with the Immigration Court in Adelanto, California on February 12, 2018.
On February 27, 2018 an order advancing the removal hearing was served on a custodial officer for Soto-Mejia. On February 27, 2018, a letter entitled “Notice of Hearing in Removal Proceedings” addressed to Soto-Mejia at the Adelanto Detention Facility on 10250 Rancho Road
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in Adelanto, California, 92301 was served on a custodial officer for Soto-Mejia. The letter indicated that a hearing before Immigration Court was scheduled for March 7, 2018 at 1:00 p.m. The Notice of Hearing did not reference the nature or basis of the legal issues or charges for the removal proceedings. The Notice of Hearing also did not reference any particular Notice to Appear.
On March 7, 2018, the “Order of the Immigration Judge” indicates that Soto-Mejia appeared at the Immigration Court hearing and that he was ordered removed from the United States to Mexico. Soto-Mejia was deported on March 8, 2018. Subsequently, Soto-Mejia was encountered in the United States again and was ordered removed on March 19, 2018. The March 19 Order, as a reinstate of the prior order, derived its authority to order removal from the March 7 Order. The Indictment in this case explicitly references and relies upon the March 7 and March 19 removal orders as a basis for establishing a violation of 8 U.S.C. § 1326 by Soto-Mejia.
II. Legal Standard
Since a prior order of removal is a predicate element of 8 U.S.C. § 1326, a defendant may collaterally attack the underlying removal order.United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on such a collateral challenge to a deportation order, the individual must demonstrate that (1) he exhausted any administrative remedies he could have used to challenge the order (or is excused from such exhaustion); (2) the deportation proceedings deprived the individual of judicial review (or is excused from seeking judicial review); (3) the entry of the order was fundamentally unfair. 8 U.S.C. 1326(d); Ramos, 623 F.3d at 680.
A removal order is “fundamentally unfair” if (1) an individual’s due process rights were violated by defects in the underlying proceeding, and (2) the individual suffered prejudice as a result. Ubaldo-Figueroa, 364 F.3d at 1048.
III. Discussion
The Defendant argues that this case must be dismissed because his criminal prosecution derives from a defective immigration proceeding in which the immigration court did not have
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jurisdiction to commence removal proceedings against him because the Notice to Appear initiating the proceeding was defective. He argues that the March 7 Order is thus void as the immigration court did not have jurisdiction to issue an order. He further argues that, as the initial March 7, 2018 deportation order is void, the subsequent reinstatement removal order of March 19, 2018 is also void as it derived its authority from the March 7 Order. Specifically, Soto-Mejia argues that the initial Notice to Appear that issued in his case did not include a time and location for the proceeding. Relying upon the United States Supreme Court’s recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Soto-Mejia argues that a notice to appear must contain a location and time for a removal hearing in order to create jurisdiction for the immigration court. Id. at 2110. As the Notice to Appear in this case did not contain such information, the immigration court, according to Soto-Mejia, did not have jurisdiction to issue a removal or deportation order.
The government responds with several arguments. First, the government argues that Soto-Mejia waived his argument regarding jurisdiction—claiming that it is personal rather subject matter jurisdiction which is at issue—by not raising a jurisdictional objection in the immigration proceeding and conceding to the immigration court’s jurisdiction by appearing. Second, the government avers that the immigration court’s jurisdiction is determined by the federal regulations and that the Notice to Appear in this case contained the information it must pursuant to those regulations to vest the immigration court with jurisdiction. See 8 C.F.R. §§ 1003.14(a), 1003.15(b) and (c). Third, the government argues that the holding in Pereia is limited to the cases in which a court must determine the validity of a particular notice to appear as it relates to the triggering of the “stop-time rule.” Id. at 2116. Fourth, the government argues that there is no prejudice to Soto-Mejia as any defect was cured by the Notice of Hearing and Soto-Mejia’s participation in the removal proceedings. The Court rejects all of the government’s arguments.
A. The Removal Orders of March 7 and March 19 Violated Due Process As the Immigration Court Lacked Subject Matter Jurisdiction
The Court finds that Supreme Court’s holding in Pereira to be applicable and controlling in this case. First, the Court finds pursuant to the plain language of the regulations that the jurisdiction of the immigration court “vests” only “when a charging document is filed with the
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Immigration Court.” 8 C.F.R. §1003.14. A “Notice to Appear” is such a “charging document.” Id. at § 1003.13. Relying upon the reasoning of Pereira, this Court finds that the definition of a “Notice to Appear” is controlled by statute and not regulation, as the Supreme Court expressly rejected in Pereira the regulation-based interpretation by the Board of Immigration Appeals in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). Pereira, 138 S. Ct. at 2111-14. And, pursuant to Pereira, a Notice to Appear must include the time and location for the hearing. Id. at 2114-17. As the Notice to Appear in this case failed to include the time and location for the hearing, the immigration court did not have jurisdiction to issue its March 7 deportation order.
The Court rejects the government’s argument that Soto-Mejia waived his jurisdictional argument by not raising it earlier and by participating in the underlying immigration proceeding. The government’s argument conflates personal jurisdiction with subject matter jurisdiction. Soto-Mejia’s argument is founded upon his assertion that the immigration court lacked subject matter jurisdiction and not personal jurisdiction. Subject matter jurisdiction is a limitation on “federal power” that “cannot be waived” so “a party does not waive the requirement [of subject matter jurisdiction] by failing to challenge jurisdiction early in the proceedings.” Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702-03 (1982). Moreover, the plain language of the regulation establishing the immigration court’s jurisdiction explicitly notes that an immigration court’s authority only “vests” with the filing of a “charging document” and the regulation makes no reference to a waiver exception to this requirement for subject matter jurisdiction. 8 C.F.R. § 1003.14(a).
The Court also rejects the government’s argument that the holding in Pereira is limited to cases determining the applicability of the stop-time rule. As noted, the Supreme Court’s holding in Pereira was based upon the plain language of the text of 8 C.F.R. §§ 1003.13 and 1003.14 and 8 U.S.C. § 1229(a). Pereira, 138 S. Ct. at 2111-13. Section 1003.13 specifies which documents can constitute a “charging document” for immigration proceedings after April 1, 1997. The parties all concede in this case that the only document in this record that is a “charging document” is the Notice to Appear. Id. The Court in Pereira explained that the text of Section 1229(a) lays out the statutory definition of and requirements for a “Notice to Appear” which includes the time and
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location for the hearing. 138 S. Ct. at 2114. The Supreme Court unambiguously proclaimed: “A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a).“‘”Id. at 2113-14 (emphasis added). While the Supreme Court applied this definition to the determination of the applicability of the stop-time rule, the express language of this holding does not suggest any limitation on the Court’s definition of what is and is not a “Notice to Appear” under Section 1229(a) with respect to the requirement for the notice to contain a time and location.
There is no basis to assume or conclude that the definition of a “Notice to Appear” under Section 1229(a) would be different without reference to the stop-time rule. That is because the fundamental question that the Supreme Court was answering in Pereira is whether a notice must contain the time and location of the hearing to be a “notice to appear” under Section 1229(a). 138 S. Ct. at 2113-17. In answering this foundational question, the Court did not rely upon the stop-time rule to determine the definition of a notice to appear under Section 1229(a). To the contrary, the Court spent considerable time explaining why consideration of the stop-time rule’s “broad reference” to all of the paragraphs of Section 1229(a) did not alter the fact that the essential definition of and requirements for the notice arise in the first paragraph. 138 S. Ct. at 2114 (noting that the “broad reference to §1229(a) is of no consequence, because as even the Government concedes, only paragraph (1) bears on the meaning of a ‘notice to appear'”). This first paragraph requires that the notice contain the time and location for the removal proceeding.
The Court is also unpersuaded that a defect in a “Notice to Appear” can be ‘cured’ as the government suggests by the filing and/or serving of the Notice of Hearing on Soto-Mejia. That is because such an argument is contrary to the plain text of the regulation, Section 1003.14(a), which unequivocally states that an immigration court’s jurisdiction only “vests” or arises with the filing of a “charging document.” A Notice of Hearing is not one of the “charging documents” referenced in Section 1003.13. A Notice of Hearing cannot therefore commence an immigration proceeding by subsequently providing a time and location for a removal hearing. Consequently, if the immigration court’s jurisdiction never arose because the Notice to Appear was invalid, then there is no proceeding in which a Notice of Hearing could properly be filed. There is nothing to cure.
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Moreover, the Court also finds that the Notice of Hearing in this case did not reference a specific Notice to Appear. Indeed, the government conceded and the Court finds that the Notice of Hearing form does not generally, or in this case, reference a prior specific Notice to Appear and it does not contain information about the legal issues or charges which serve as a basis for the removal proceedings. The two documents only common identifying information is the A-file number of the particular person—Soto-Mejia in this case. This means that if an individual had multiple potential charges or legal issues related to his immigration status, the Notice of Hearing could not inform him about which charges were at issue in the upcoming hearing and the Notice of Hearing could be filed months or years after the Notice to Appear. Indeed, this is the very reason that the Supreme Court in Pereira rejected the argument that the “Notice to Appear” did not have to include the time and location of the removal proceeding, because that would defeat the ultimate objective of requiring notice—allowing the person to prepare for the hearing and potentially consult with counsel. 138 S. Ct. at 2114-15. As the Court noted, if there was no requirement for this information “the [g]overnment could serve a document labeled ‘notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.” Id. at 2115. Under such an interpretation “a noncitizen theoretically would have had the ‘opportunity to secure counsel,’ but that opportunity will not be meaningful” as the person would not truly have the opportunity to consult with counsel and prepare for the proceeding.” Id. As a Notice of Hearing, like the one here, is not explicitly connected to a particular Notice to Appear and the associated charges, the Court finds that it cannot serve to ‘cure’ a defective Notice to Appear such as in this case.
The Court further finds that the Soto-Mejia suffered prejudice as a result of the defect in the underlying proceeding. Specifically, he was subjected to removal twice based upon the initial
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March 7 Order which the immigration court did not have jurisdiction to issue. The government’s argument that Soto-Mejia was not prejudiced because he “participated” in the removal proceedings misses the point. It is immaterial if he participated in the proceedings. He suffered prejudice by the issuance of the deportation orders because the immigration court lacked jurisdiction to order his removal on March 7, 2018.
IV. Conclusion
For the reasons stated, the Court finds that the March 7 and March 19 deportation orders are void due to the immigration court’s lack of jurisdiction. As these orders are void, the Court finds that the government cannot establish a predicate element—the prior removal or deportation of Soto-Mejia—of the sole offense in the Indictment. The Indictment in this case must therefore be dismissed.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. The Indictment in this case is DISMISSED. The Clerk of Court shall close this case.
IT IS FURTHER ORDERED that, as this Court has no authority to detain Defendant Soto-Mejia pursuant to this case, he is ORDERED IMMEDIATELY RELEASED.
DATED this 6th day of December, 2018.
/s/_________
UNITED STATES DISTRICT JUDGE
——–
Footnotes:
1. The Court finds that Soto-Mejia is not required to have exhausted any possible administrative remedies, because (a) the Supreme Court decision in Pereira issued after his March 7, 2018 proceeding and (b) defects as to subject matter jurisdiction may be raised at any time. Compagnie des Bauxites, 456 U.S. at 702-03.
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Unlike the BIA’s convoluted reasoning in Matter of Bemudez-Cota, 27 I&N Dec. 441 (BIA 2018), Judge Boulware’s analysis is very straightforward and complies with both the statutory language and the Supreme Court decision. What’s not to like about that?
As I’ve pointed out before, Sessions was so busy artificially “jacking up” the backlog and intimidating the Immigration Judges working for him that he never bothered to address the many solvable legal and administrative problems facing the Immigration Courts. That could mean not only more failed criminal prosecutions, but perhaps more significantly, could invalidate the vast majority of the 1.1 million case backlog that Sessions artificially increased with his short-sighted, racially motivated “gonzo” polices and interpretations.
And Whitaker is following in his footsteps by taking issues off the “restrictionist checklist” for screwing asylum seekers and migrants, rather than addressing the real legal and administrative deficiencies that make the Immigration Court a parody of justice in America.
Darn, perhaps carried away with all the tributes to Bush I, I had hoped for a conservative, law enforcement oriented, but non-racist, non-White-Nationalist approach to immigration. Something like firm, but fair, unbiased, professional, and rationally managed. Guess that just isn’t going to happen under a GOP that has made racist appeals, xenophobia, false narratives, and anti-democracy part of its official agenda. I have a tendency to give everyone the “benefit of the doubt” at least until proven otherwise. I guess I have to alter that when dealing with anyone associated with today’s GOP.
That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.
Matter of Castillo-Perez, to determine(1) In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?
(2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?
(3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b).
The Acting Attorney General ordered that the case be stayed during the pendency of his review.
The BIA is rapidly becoming irrelevant. But since the Acting Attorney General isn’t an expert in immigration laws, his decisions should get no deference from the real courts. And, then there is the question of whether he really is the Acting Attorney General . . . .
Hamed Aleaziz reports for BuzzFeed News, quoting extensively from “Our Gang” Leader Hon. Jeffrey Chase:
WASHINGTON — Homeland Security and Justice Department officials are feuding over a controversial plan that would force asylum-seekers at the southwestern border to remain in Mexico until their cases are decided, according to sources close the administration.
Department of Justice officials have been pushing for asylum-seekers at the border to be immediately returned to Mexico as they arrive at the border, instead of first undergoing screening for fear of persecution or torture if they are not allowed in.
Department of Homeland Security officials want asylum-seekers screened for persecution, torture, and fear before being immediately returned to Mexico, to ensure that there are no serious concerns for their safety in Mexico.
The dispute highlights the fact that key details regarding the plan are still up in the air.
A Justice Department official said there was no dispute over the screening process but that the matter was under consideration between both agencies. The official said the discussion between the two US departments were “a normal part of the process.” DHS declined to comment.
Jeffrey Chase, a former immigration judge, said the dispute goes to the very heart of asylum law, which grants foreigners who otherwise would not be admissible the right to enter the country if they can show that they have a “credible fear” of persecution if they are returned to the country they came from.
“‘Credible fear’ was created over 20 years ago to be the standard for those arriving and not deemed admissible. It was designed to be a low bar, as those at the border have just arrived, are often scared of government officials, are sometimes traumatized, usually don’t yet have legal counsel, and have very limited ability to gather evidence,” Chase told BuzzFeed News. “Imposing a higher standard for political purposes would be contrary to our treaty obligation to not return genuine refugees.”
BuzzFeed News reported earlier this month that the administration had been considering such a plan and that discussions with Mexico had been ongoing. The Washington Post reported last week that a deal had been agreed upon with Mexico and that asylum-seekers would remain in that country while their cases were being adjudicated. But that story was later denied by Mexican officials, and the status of any talks is uncertain. A new administration takes office in Mexico on Saturday.
The proposal was first focused on individuals who come to a port of entry to request asylum but has since been extended to include those apprehended between border crossings as well, sources said.
The discussions appear to be a renewed effort to implement a directive first raised in an executive order that President Donald Trump signed in the early days of his administration in 2017. The Mexican government publicly rejected that plan, and the Trump administration made no effort to implement the president’s instructions.
In the executive order, Trump had directed the Department of Homeland Security Secretary to pursue the option. In a memo written by then-DHS chief John Kelly, officials were told to return individuals at the border “to the extent appropriate and reasonably practicable.” Kelly cited a statute that states that certain individuals can be sent back to the contiguous country they arrived from.
Advocates have said that implementation of such a measure would put families and migrants in danger and would be quickly challenged in court.
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Well said, Jeffrey! There was a day, obviously in the past, when DOJ lawyers were concerned with assuring compliance with the law and applicable court decisions, rather than thinking of various ways to “push the envelope” by engaging in facially illegal, and certainly immoral, conduct. Hopefully, such evasion of both their oaths of office and ethical standards will be considered by future employers in the private sector.
The irony here is that with a different Administration in place, cooperation among the U.S., Mexico, and the UNHCR in ways that strengthened the Mexican asylum system, improved conditions for refugees and asylees in Mexico, encouraged regular refugee processing by both countries in or near the Northern Triangle, improved reception and processing for those at the U.S. border, and most important, constructively addressed the problems in the Northern Triangle forcing folks to flee would be a win-win-win-win for all involved.
The flow of refugees from the Northern Triangle is primarily a humanitarian, not a law enforcement situation. Among other things, a humanitarian approach would promote advantages of applying in Mexico and reasons why it could be a rational choice for some asylum seekers; it would eschew illegal threats, cynically and intentionally created inhumane, even life-threatening, conditions, and improper sanctions to “deter” individuals from asserting their legal rights to apply for asylum in the U.S. under both our law and international law. Sadly, all of the latter are exactly what the Trump Administration is engaged in at present, with the assistance of their ethically-challenged Government “legal” team.
“Our Gang”of Retired U.S. Immigration Judges continues to play a key role in defending Due Process and advancing the cause of justice in America! Here’s what one of our leaders, Judge Jeffrey Chase, had to say about the latest case decided in accordance with the arguments made in our Amicus Brief:
Hi all: I hope everyone had a wonderful Thanksgiving. It seems just before the holiday, the Ninth Circuit issued a decision in Rodriguez v. Marin (the remand of the Jennings case from the Supreme Court concerning indefinite detention). 20 of us were amici on a brief filed with the 9th Cir. drafted by a team at Wilmer Hale headed by Adriel Cepeda-Derieux.
The Supreme Court remanded for consideration of the constitutional question, which the district court, on remand, will consider in the first instance. The following language by the Circuit Court from its decision is heartening:
Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government.
Stay tuned! Attached is a link to the full decision, and a PDF copy of our amicus brief. Best, Jeff
Great language from the Ninth Circuit. Sadly, however, unconstitutional conduct and mockery of the rule of law, particularly in connection with immigration matters is a mainstay of this “Scofflaw Administration.” (I will note that the Obama Administration took the same “thumb your nose at our Constitution” position as Trump has in this long-running case.)
Trump and his DOJ lawyers like to advertise that they consider the Supremes “bought and paid for” and that they fully expect the GOP-appointed majority to “take a dive” every time the Administration wants to bend the law or operate in a “Constitution free” zone. As an indication of their total contempt for the judicial process and their belief that the “own” a majority of the Supremes, they have taken the almost unprecedented step in a number of key cases of trying to “short-circuit” the normal judicial process in the lower Federal Courts by going straight to the Supremes with the pleas for intervention.
But, in this case, they are likely to be out of luck. The case has already been to the Supremes and they quite pointedly “punted” it back to the Ninth Circuit and the U.S. District Court. As the Ninth Circuit notes in its remand opinion, the Fifth Amendment constitutional issue is straightforward and was fully briefed by the parties before the Supremes. But, it’s obvious that the Supremes wanted no part of it at that time.
So, it’s highly unlikely that the Supremes will intervene before the case works its way back up through the District Court and the Ninth Circuit, a process that will take months, if not years. Meanwhile, the injunction against indefinite detention without bond hearings remains in effect within the Ninth Circuit, which generates the largest number of immigration cases.
If Chief Justice Roberts really wants to demonstrate judicial independence and fair and impartial justice within the Third Branch this is his chance (along with Justices Gorsuch and Kavanaugh, who both would do well to put some distance between themselves and Trump) to show it in actions, not just rhetoric!
He squandered his opportunity in the “Travel Ban” case. If nothing else, he can now see that rather than respectfully considering his “warning shots,” Trump has specifically ignored them and treated the Chief Justice with the same utter contempt as he treats the spineless lackeys who surround his presidency.
But, the good thing about “judging,” at any level, is that you often get a chance to redeem yourself for past mistakes. Whether Roberts has the judicial integrity and leadership skills to pull it off, remains to be seen.
This also should be a “warning shot” to the DOJ that former AG Sessions’s vile plan (which he left unfinished when Trump unceremoniously axed him) to undo bond for asylum applicants who pass credible fear, on the basis of a clearly bogus and contrived reading of the Supreme’s Jennings v. Rodriguez remand, is likely to be found unconstitutional and therefore “DOA” in the Ninth Circuit.
Attorney General Jeff Sessions resigned on Wednesday at the request of Donald Trump. He served a little less than two years as the head of the Department of Justice. During that time, Sessions used his immense power to make America a crueler, more brutal place. He was one of the most sadistic and unscrupulous attorneys general in American history.
At the Department of Justice, Sessions enforced the law in a manner that harmed racial minorities, immigrants, and LGBTQ people. He rolled backObama-era drug sentencing reforms in an effort to keep nonviolent offenders locked away for longer. He reversed a policy that limited the DOJ’s use of private prisons. He undermined consent decrees with law enforcement agencies that had a history of misconduct and killed a program that helped local agencies bring their policing in line with constitutional requirements. And he lobbied against bipartisan sentencing reform, falsely claiming that such legislation would benefit “a highly dangerous cohort of criminals.”
Meanwhile, Sessions mobilized the DOJ’s attorneys to torture immigrant minors in other ways. He fought in court to keep undocumented teenagers pregnant against their will, defending the Trump administration’s decision to block their access to abortion. His Justice Department made the astonishing claim that the federal government could decide that forced birth was in the “best interest” of children. It also revealed these minors’ pregnancies to family members who threatened to abuse them. And when the American Civil Liberties Union defeated this position in court, his DOJ launched a failed legal assault on individual ACLU lawyers for daring to defend their clients.
As he oversaw family separation, forced birth, and mass incarceration, Sessions found time to degrade LGBTQ Americans and their families. He issued a memo alleging that federal civil rights laws do not protect transgender employees, a position the Justice Department recently reiterated to the Supreme Court. He also argued that these civil rights laws do not protect gay people. His DOJ defended Trump’s ban on open transgender military service by claiming that trans people are disordered deviants. Under his leadership, the DOJ also asked the Supreme Court to rule that many businesses have a First Amendment right to turn away same-sex couples. (Sessions gave a speech to the anti-LGBTQ group that brought that case to SCOTUS, thanking them for their “important work” on behalf of religious liberty.)
The guiding principle of Sessions’ career is animus toward people who are unlike him. While serving in the Senate, he voted against the reauthorization of the Violence Against Women Act because it expressly protected LGBTQ women. He opposed immigration reform, including relief for young people brought to America by their parents as children. He voted against the repeal of Don’t Ask, Don’t Tell. He voted against a federal hate crime bill protecting gay people. Before that, as Alabama attorney general, he tried to prevent LGBTQ students from meeting at a public university. But as U.S. attorney general, he positioned himself as an impassioned defender of campus free speech.
While Sessions doesn’t identify as a white nationalist, his agenda as attorney general abetted the cause of white nationalism. His policies were designed to make the country more white by keeping out Hispanics and locking up blacks. His tenure will remain a permanent stain on the Department of Justice. Thousands of people were brutalized by his bigotry, and our country will not soon recover from the malice he unleashed.
His successor could be even worse.
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Can’t overstate the intentional damage that this immoral, intellectually dishonest, and bigoted man has done to millions of human lives and the moral and legal fabric of our country. “The Father of the New American Gulag,” America’s most notorious unpunished child abuser, and the destroyer of Due Process in our U.S. Immigration Courts are among a few of his many unsavory legacies!
The scary thing: Stern is right — “His successor could be even worse.” If so, the survival of our Constitution and our nation will be at risk!
Immigration courts under the Trump administration have approved asylum cases at the lowest rate in nearly two decades, according to an analysis of Department of Justice data.
The new figures come after a year in which Attorney General Jeff Sessions has taken a series of steps to curtail when individuals can gain asylum. In June, Sessions issued a major decision that eliminated claims of domestic violence or gang violence by nongovernmental actors as reasons for granting asylum. He also limited when judges can suspend or continue cases.
The new statistics illustrate the difficulty that many of those traveling with a new caravan across Mexico will face if they present themselves as asylum candidates at the US border.
Experts pointed to Sessions’ rulings and restrictions on judges as partly responsible for the drop in the number of asylum cases granted.
“Through a targeted and well-coordinated effort the Trump administration has significantly decreased the number of people who qualify for asylum,” said Sarah Pierce, an analyst at the Migration Policy Institute. “While it is true that our asylum system is in need of major reforms, the administration’s response has been to reverse years of case law dictating who are legitimate asylum seekers.”
The Department of Justice released the asylum data Friday. According to Pierce’s analysis, the asylum approval rate is just over 33% for the 2018 fiscal year, which ended in September. Under the Obama administration, the rate hovered between 44% and 55%. The last time the rate dipped below 33% was in 1999, during the Bill Clinton administration, when it was 31%, according to Pierce’s analysis.
The Department of Justice declined to comment on the analysis.
The administration is processing the largest number of asylum cases in years and has granted asylum to more individuals — more than 14,000 — than in any year since at least 1996. Yet, the number of denials also dwarfs those of the past two decades — more than 28,000. The previous high for denials was more than 25,000 in 1996.
The rates do not include cases processed by US Citizenship and Immigration Services when individuals voluntarily apply for asylum before being placed in deportation proceedings. Individuals who are denied after applying through USCIS are then processed through the immigration courts in deportation proceedings, according to Pierce.
Sessions has long been critical of the way asylum cases are handled. In an October 2017 speech to immigration judges, he tipped off his future attempts to restrict asylum grants, arguing that the laws were never intended to provide asylum to those who had a fear of generalized violence or crime and that those claims had swamped the system. He hit out against “dirty immigration lawyers” who allegedly were persuading clients to make false claims of asylum.
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases.
Jeffrey Chase, a former immigration judge, said that the numbers can also be attributed to the fact that many asylum cases in recent years don’t fall within the classic asylum formula that was developed as a response to World War II. In his decisions, Sessions cut the kinds of arguments individuals could make to potentially gain asylum.
“Sessions,” Chase said, “skewed the numbers in the most recent fiscal year through his issuance of precedent decisions that reflect his personal, politically motivated views on immigration, as opposed to proper legal reasoning.”
This evidence strongly suggests that with reasonable access to lawyers and a truly fair, impartial, and unbiased judicial system, a majority of those seeking refuge in the U.S. probably could qualify for asylum or some other type of protection.
Will the Article III Courts continue to “go along to get along” with this mockery of justice involving life or death claims. Or, whether “conservative” or “liberal” will the “real” Article III independent judiciary step in and force immigration hearings to be conducted fairly and impartially and without the overriding influence of biased officials like Sessions who treat the courts as appendages of the DHS enforcement system? Only time will tell. But, history will record who stood tall and who went small!
Reade Levinson & Kristinas Cooke report for Reuters:
(Reuters) – Liliana Barrios was working in a California bakery in July and facing possible deportation when she got a call from her immigration attorney with some good news.
The notice to appear in court that Barrios had received in her deportation case hadn’t specified a time or date for her first hearing, noting that they would be determined later. Her lawyer was calling to say that the U.S. Supreme Court had just issued a ruling that might open the door for her case, along with thousands of others, to be dismissed.
The Supreme Court case involved Wescley Fonseca Pereira, a Brazilian immigrant who overstayed his visa and was put into deportation proceedings in 2006. The initial paperwork he was sent did not state a date and time of appearance, however, and Pereira said he did not receive a subsequent notice telling him where and when to appear. When he failed to show up in court, he was ordered deported.
The Supreme Court ruled that paperwork failing to designate a time and place didn’t constitute a legal notice to appear in court.
The ruling sparked a frenzy of immigration court filings. Over ten weeks this summer, a record 9,000 deportation cases, including Barrios’, were terminated as immigration attorneys raced to court with challenges to the paperwork their clients had received, a Reuters analysis of data from the Executive Office for Immigration Review shows. The number represents a 160 percent increase from the same time period a year earlier and the highest number of terminations per month ever.
Then, just as suddenly as they began, the wave of case terminations stopped. On August 31, in a different case, the Board of Immigration Appeals (BIA) ruled that charging documents issued without a date and time were valid so long as the immigrant received a subsequent hearing notice filling in the details, as is the usual procedure.
A Department of Justice official said that as a result of the BIA decision, the issues “have been solved.”
The Department of Homeland Security (DHS) did not respond to requests for comment, but the agency laid out its thoughts on the terminations in court documents opposing the motions to terminate. In a San Diego case, DHS wrote that the motions were based on a “misreading” of the Supreme Court decision. “If read in a manner most favorable to the respondent, the practical impact would be to terminate virtually all immigration proceedings.” The Supreme Court decision “nowhere purports to invalidate the underlying removal proceedings,” DHS wrote.
The dueling interpretations will now be weighed by a federal appeals court, which could uphold or overturn the BIA decision in coming months. The case could ultimately end up before the Supreme Court.
“ONE GASP”
Having a removal case terminated, as Liliana Barrios and many others did over the summer, does not confer legal status, but it does remove the threat of imminent deportation and provide an immigrant time to pursue legal ways of staying in the country, such as asylum or by accruing enough time in the country to be eligible to stay through a process known as cancellation of removal.
The Supreme Court ruling provided a “brief glimmer of hope”, said immigration lawyer Aaron Chenault, “like when you are almost drowning and you get one gasp.”
The Department of Homeland Security can appeal the case dismissals or it can restart deportation proceedings by issuing a new notice to appear. By the end of August, the most recent date for which records are available, government attorneys had appealed only 2,100 of the cases terminated in the wake of the decision, according to a Reuters analysis.
Roxie Rawls-de Santiago, an immigration attorney in New Mexico, said that for some of her clients, even a few months of not being in active deportation proceedings could make a difference. One woman whose case was terminated, for example, has a U.S. citizen daughter who turns 21 next year, the age at which she can sponsor her mother for permanent residency, and the woman is now hopeful she can stave off deportation proceedings until then.
CHAOS IN THE COURTS
At the Department of Justice, which administers the immigration courts, chaos reigned in the weeks following the June decision. Immigration judges and officials struggled to agree on an interpretation of the Supreme Court ruling, according to internal emails obtained through a Freedom of Information Act request by immigration attorney Matthew Hoppock and shared with Reuters.
“The issue has VERY large implications, in that DHS has put the actual “time and date” on VERY, VERY few NTA’s, if any. Any guidance would be helpful,” wrote Memphis immigration judge Richard Averwater in an email to an assistant chief immigration judge days after the ruling. Averwater declined to discuss the email further.
In San Francisco alone, immigration judges terminated 2,000 cases between June 21 and August 31, sometimes more than 100 a day, according to a Reuters analysis. In San Antonio, more than 1,200 cases were terminated.
“The court was getting dozens and dozens and dozens of those a day,” said Ashley Tabaddor, president of the immigration judges’ union. “The large number of terminations that happened were directly a result of Pereira.”
The door to mass dismissals for such cases could be reopened or remain closed depending on how the 9th U.S. Circuit Court of Appeals rules on the Board of Immigration Appeals decision that stopped them.
For Barrios, 20, who was caught crossing the Southern border illegally with her toddler two years ago, her dismissal has meant more time to file for a special visa for immigrants under the age of 21 who have been abandoned or neglected. Barrios said she was abandoned by her mother.
Having her case terminated “lifted the pressure a bit,” said Barrios, who makes cream for cookies at a wholesale bakery in California during the day and studies English at night. The Department of Homeland Security has appealed her case termination.
Reporting by Kristina Cooke and Reade Levinson; Editing by Sue Horton and Paul Thomasch
Gee whiz, my time of solving Immigration Enforcement’s legal problems for them ended over three decades ago. But it sure seems to me that taking the following very “doable” steps would have forestalled this mess:
Conceding the respondent’s jurisdictional point “arguendo” (in other words, without taking a position on whether it was legally correct or not);
Immediately reissuing and serving the Notice to Appear (“NTA”) containing a correct time, date, and place of hearing; and
Sitting down with EOIR officials and getting back “online” the formerly existing “interactive scheduling system” that allowed DHS officials issuing NTAs to essentially reserve certain actually available court times and dates to place on the NTAs at time of issuance.
I don’t understand how continuing to litigate this jurisdictional issue or, as some DHS offices have bone-headedly done, issuing NTAs with obviously “fake” dates (like Christmas, weekends, or other holidays) advances either DHS’s particular enforcement needs or the need for an orderly system.
Nor do I think we can assume that this is “slam dunk winner” for the Administration, even with a supposedly “more conservative” Supreme Court. Indeed, a “plain meaning” or “strict textualist” reading of the INA appears to support the respondents’ position rather than DHS’s. The BIA essentially “rewrote the statute” to reach its result in Bermudez. They certainly weren’t implementing the “plain language” of the statute which clearly and specifically defines what a “Notice to Appear” shall contain.
Sometimes (as I can attest from years of experience) the law is inconvenient for the Government bureaucracy. But, that doesn’t mean it’s not the law. And, it’s always better to “do it right the first time” rather than being forced into “redos” by the Federal Courts.
Ani Ucar reports for Vice News in an article featuring quotes from “Our Gang” members retired U.S. Immigration Judges Jeffrey Chase and John Gossart, as well as current (soon to be retired, perhaps?) Judge Denise Slavin:
Overwhelmed immigration courts are a national problem, and the growing backlog means an average immigration case is waiting in court for a record 717 days, as of 2018, according to Syracuse University.
But Maryland, with its more than 34,000 pending cases, has the fastest-growing backlog, largely because its sole immigration court, the Baltimore Immigration Court, is one of the most beleaguered and understaffed in the country, according to a confidential Department of Justice review obtained by VICE News.
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VICE News first obtained a heavily redacted version of the report through a records request but later obtained an uncensored version of the review, which paints a portrait of dysfunction at one of the busiest immigration courts in the country.
Completed in 2018 and covering the years 2014 to 2017, the review shows a department so understaffed that basic functions such as address changes or orders to appear in court were not processed or sent out as caseloads piled up. Failing to process key documents could deny migrants the opportunity to be heard in court. “Poor management of this core process leads to additional work for the Court and can result in respondents being ordered removed in absentia through no fault of their own,” the report says.
As the court’s caseload mounted, the number of sitting judges stayed the same, fluctuating between four and five. As a point of reference, Chicago’s immigration court, which has a comparable caseload, has twice the number of sitting judges.
NO HABLA ESPAÑOL
The court’s office had no Spanish speakers on staff, even though 84 percent of its cases involved a respondent who only spoke Spanish. The equipment in the office was dated and often nonfunctional. “The two existing HP copiers in the Baltimore Court have had numerous issues and there have been literally days when the Court is unable to use either copier,” the report said.
A lack of administrative staff meant boxes with thousands of documents were left sitting on the floor or on top of file cabinets, and the report describes “hallway space filled with files, file carts, printers and the like.”
One judge currently on the court told VICE News that as cases and administrative work piles up, the court may not be able to provide due process.
“I’m happy to be retirement-eligible, and quite frankly a lot of us are,” said Baltimore Immigration Judge Denise N. Slavin, who spoke to VICE News in her capacity as president emeritus of the National Association of Immigration Judges. “I feel like if I get pushed to a point to violate due process, or I’m being disciplined for not doing something that I thought would violate due process, I would be able to leave.”
As bad as it’s been in the Baltimore Immigration Court, it’s about to get worse. On Monday, a new policy backed by Attorney General Jeff Sessions went into effect mandating that the nation’s roughly 330 immigration judges process at least 700 cases per year. The Department of Justice has said it will hire 100new immigration judges this calendar year to help with the backlog, but current and former immigration judges say more judges without commensurate support staff will only add to the problem.
The confidential report on the Baltimore Immigration Office was performed by a court administrator at the request of the Office of the Chief Immigration Judge, a branch of the DOJ. Unlike state or federal courts, immigration courts are part of the Department of Justice, and therefore part of the executive branch of government.
SURGING CASES
The review took place in November and December of last year, and focused on the time period from 2014-2017, when the Baltimore Immigration Court caseload nearly quadrupled.
Though the caseload was rising during that period, the court was shedding staff: They lost seven full-time permanent employees. “The shortage of staff in the Baltimore Court was so severe the Court did not have enough employees to manage the Court’s core processes,” the report says.
The report coincides with a 2014 surge of crossings at the U.S.-Mexico border. Baltimore’s caseload began to grow rapidly afterward. Despite having completed 33.11 percent more cases from 2015 to 2016 combined, the court’s efforts were not enough to keep pace with the mounting backlog. At the end of 2014, the court had 8,331 pending cases, and by December 2017 the pending caseload jumped to 29,184, according to the Transactional Records Access Clearinghouse database, or TRAC, at Syracuse University.
“It feels like you are being buried alive”
Backlogs in the immigration courts have historically been impacted by shifting migration patterns, immigration policy changes, and hiring freezes on judges and staff. But since President Trump took office in 2017, the number of pending cases in immigration courts has increased 41 percent, bringing the total to 764,561 as of August 31, 2018, according to TRAC.
“It feels like you are being buried alive,” said Los Angeles Immigration Judge Ashley Tabaddor, speaking as president of the National Association of Immigration Judges. “It’s like this tsunami of cases that just never goes away, and instead of [us] being helped, the department is just adding more pressure.”
QUOTA SYSTEM
Sessions has said the quota system will help cut down the record-high backlog, but immigration judges, both current and retired, have pushed back, saying the standard would threaten due process and judicial independence.
“There’s an overabundance of attention on efficiency and there seems to be little to no concern from higher-ups on getting the decisions right,” said retired New York City Immigration Judge Jeffrey S. Chase.
Baltimore’s immigration court is relatively small, but it has been operating with a caseload similar to that of a large immigration court. While more populous states have a number of immigration courts—there are seven courts in California, for instance, and six in New York—the Baltimore facility is the only one in Maryland.
The report describes at length how staff failed to maintain order as paperwork grew. “As of early December 2017, there were approximately 700-1,000 additional filings sitting in the Court that are made up of EOIR-28s, EOIR-33s, returned notices, general correspondence and motions that have not been processed,” the report says. (An EOIR-28 is a notice of appearance in court. An EOIR-33 is a change-of-address form.)
“How the Baltimore court manages motions still needs improvement. Poor management of this core responsibility leads to additional work for the Court, and it sends the message to the private bar and to DHS that the Court is not organized and cannot be relied on,” the report said.
The Department of Justice declined to comment on the report.
At the time of the review, the Baltimore court had 24,142 pending cases in which the respondent spoke Spanish but no Spanish-speakers on staff. At one point, the staff resorted to pulling two judges off the bench to help the front desk with translation needs, said one EOIR employee.
Other times they had to enlist the help of someone in the waiting room to interpret for people. “Sometimes they were not getting the best information or even accurate information about their case,” said the EOIR employee.
“Recruitment of a Spanish Interpreter should be a priority,” the report says, but that position has yet to be filled.
All these issues are expected to worsen with the rollout of the quota system. “We’ll have preliminary success with getting a large number of cases out and temporarily reduce the backlog, but ultimately a large number of those cases will come back on appeal, thus making the backlog even worse,” Slavin said.
At the end of the day, the taxpayer will be on the hook for the cost of the immigration policy, said retired Baltimore immigration judge F. Gossart Jr. “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise.”
Wow! An Attorney General who consistently shows bias and maliciousness combined with incompetence. What a horrible combination! And throw into the mix a complete abdication of oversight functions by the GOP-controlled Congress.
Sessions is pouring taxpayer money down the drain in an effort to actually make the system more dysfunctional and less fair. It’s the type of fraudulent, wasteful, and abusive conduct that in normal times might result in criminal prosecutions and jail sentences. We also know that he is promoting similar dysfunction in the criminal justice system with his inane and ineffective “zero tolerance” policy that has also made him the nation’s most notorious un-prosecuted child abuser. Yet, Sessions walks free, while the victims of his misconduct, many vulnerable children and women merely seeking the justice to which they are entitled, rot in his “New American Gulag” and/or suffer grossly substandard “justice” in a totally out of control charade of a “court system” where Due Process is mocked every day.
When the only thing that keeps you going is the knowledge that you can retire any day, you know that your job is really screwed up! (Hint to the un-retired but eligible: The very best time to retire is before you get to the foregoing point.)
If this isn’t your vision of America, then take Willie Nelson’s advice and “Vote ‘Em Out.”
USCIS: USCIS will take an incremental approach to implement this memo… The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.
USCIS: USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria… Eligibility for these benefits can vary from state to state, depending on the state’s income level guidelines. As a result, individuals who would not otherwise qualify under the poverty-guideline threshold and financial hardship criteria have been granted fee waivers by USCIS.
DOJ: The Executive Office for Immigration Review (EOIR) announces the investiture of 46 immigration judges, including two assistant chief immigration judges, marking for the second month in a row the largest class in the agency’s history. IJ bios here.
Samuel M. Factor, Immigration Judge, New York City Immigration Court
Brian T. Palmer, Immigration Judge, New York Immigration Court
Oshea Denise Spencer, Immigration Judge, New York City Immigration Court
AILA, CLINIC, and NILC provided a summary of issues discussed during a 9/12/18 telephonic call with representatives from DOS concerning FAM changes and consulates’ public charge determinations and associated Form I-601A revocations. AILA Doc. No. 18092632
AIC: Although only one immigration case is currently scheduled to be heard, challenges to President Trump’s immigration policies will likely end up in front of the Court by the end of the term.
In this policy brief, AILA expresses its opposition to S. 3478, which would eviscerate long-standing legal standards and protections for immigrant children and families seeking asylum who arrive at the U.S. border. AILA Doc. No. 18092500
TRAC: Historically, the vast majority of ICE arrests occur when the agency assumes custody of immigrants from another law enforcement agency. Since Trump assumed office, roughly three out of four ICE arrests were what ICE refers to as “custodial” arrests…The remaining one-quarter (25%) were individuals arrested at their home, place of work, or elsewhere in the wider community including at courthouses or at DHS offices when the immigrant had appeared for an appointment.
AILA member Taymoor Pilhevar discusses USCIS’s policy memorandum issued on 7/13/18 on the rescission of the standing policy that RFEs and NOIDs must be issued before a denial is issued. AILA Doc. No. 18092730
NYT: The report looked at more than 5,500 doctors across the country used by United States Citizenship and Immigration Services as of June 2017 to examine those seeking green cards. More than 130 had some background of wrongdoing, including one who sexually exploited female patients and another who tried to have a dissatisfied patient killed, the report said.
AIC: This continuing resolution sets up a potential major battle over immigration enforcement, border wall funding, and other immigration issues—which could all come to a head in the face of a December government shutdown.
WaPo: Boase was placed in removal proceedings last month, roughly a year after he admitted during his citizenship interview with U.S. Citizenship and Immigration Services that, yes, he once registered to vote, and yes, he once cast a vote.
The plaintiffs filed a class action suit and motion for preliminary injunction to force the government to preserve TPS for more than 200,000 individuals, stating that TPS terminations was unconstitutional and violated the Administrative Procedure Act. (Ramos et al. v. Nielsen et al, 3/12/18) AILA Doc. No. 18092833
The court held that, taking the facts as alleged in the complaint, CBP officer is not entitled to qualified immunity due to violation of clearly established unreasonable seizure, and can be subject to a Bivens claim by mother of the deceased. (Rodriguez v. Swartz, 8/7/18) AILA Doc. No. 18092534
The court held BIA erred in concluding OR witness tampering statute was categorically CIMT and that statute was not divisible; under modified categorical approach, court found statute was divisible and applicable subsection also not categorically CIMT. (Vasquez-Valle v. Sessions, 8/10/18) AILA Doc. No. 18092536
Plaintiffs seek class certification to have ORR policies/practices be declared unlawful and to enjoin due process violations in evaluating fitness of custodians, placement in secure facilities, administering psychotropic drugs, and lack of access to counsel. (Lucas R. v. Azar, 6/29/18) AILA Doc. No. 18092670
The court granted class certification to putative class of 1900 individuals subject to an October 2017 ICE policy of re-detention without notice or individual analysis to determine necessity of re-detention; class seeks injunctive and declaratory relief. (Chhoeun v. Marin, 8/14/18) AILA Doc. No. 18092537
Complaint alleges unreasonable delay of naturalization application that was part of DOD’s MANVI program; seeks mandamus compelling government action. Lack of adjudication within normal processing times and under policies to expedite military applications violate APA. (Sea v. DHS, 7/19/18) AILA Doc. No. 18092701
The court found that despite a timely delivery to hearing due to being in custody, defendant was deprived of proper notice because NTA failed to state time and date of hearing; IJ, thus, had no jurisdiction to enter deportation order. (U.S. v. Virgen-Ponce, 7/26/18) AILA Doc. No. 18092731
The court held that revocation of green card/LPR status as void ab initio outside of INA’s five-year rescission period without a hearing was a due process violation and an agency action “not in accordance with law”; ordered status reinstated until hearing complete. (Lai v. U.S., 7/17/18) AILA Doc. No. 18092702
The court held that detention and attempted deportation of petitioner while he pursued a provisional unlawful presence waiver violated the APA and Fifth Amendment. Formal opinion forthcoming. (Martinez v. Nielsen, 8/3/18) AILA Doc. No. 18092601
The court held USCIS did not properly interpret “intention” in 8 USC §1481(a), stating that a USC’s potential inability to leave and be admitted elsewhere did not mean USC lacked “intention” to relinquish nationality under the domestic-renunciation provision. (Kaufman v. Nielsen, 7/20/18) AILA Doc. No. 18092602
DHS OIG found that USCIS has inadequate controls for verifying that foreign nationals seeking LPR status met health-related standards for admissibility. DHS OIG made recommendations that, when implemented, will improve USCIS selection and oversight of physicians and its review of medical forms. AILA Doc. No. 18092573
USCIS issued a policy alert updating the USCIS Policy Manual with guidance to clarify certain special naturalization provisions for children. This guidance is effective 9/26/18, and is controlling and supersedes any prior guidance. Comments are due by 10/9/18. AILA Doc. No. 18092605
On 9/26/18, members of the House and Senate sent a letter to the Department of Homeland Security’s Acting Inspector General, urging for an investigation of allegations of coercion and abuse by DHS officers against immigrant parents separated from their children at the border. AILA Doc. No. 18092633
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Check out the “Litigation Section” to see how “real” Article III Courts continue to reject the legal arguments pushed by the Sessions DOJ.
Perhaps the “sleeper” here is US v. Virgen-Ponce, ED WA. The District Judge rejected the BIA’s position in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) that a “Notice to Appear” that fails to specify the actual time, date, and place of hearing is sufficient to vest jurisdiction with an Immigration Judge. The “boneheaded” position taken by the BIA and DHS under Sessions (rejecting the Supreme Court’s interpretation) could, if rejected by more Article III Courts and ultimately the Supremes, invalidate most of the 760,000 cases now pending in Immigration Court! Read my colleague Judge Jeffrey Chase’s outstanding blog about the BIA’s “dereliction of duty” in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) http://immigrationcourtside.com/2018/09/02/hon-jeffrey-chase-on-how-the-bia-blew-off-the-supremes-matter-of-bermudez-cota-27-in-dec-441-bia-2018-is-the-bia-risking-docket-disaster-to/
While this is only one District Court, the legal argument is being pursued across the country. This could potentially effectively “invalidate” the entire Immigration Court System. Given the toxic, lawless actions of AG Jeff Sessions, a “complete restart” under a neutral and competent court-appointed “Special Master” could be the country’s only salvation until Congress establishes an independent Immigration Court that actually complies with our Constitution.
Given such a chance at restart, probably 60% -75% of today’s Immigration Court docket could be left off docket pending a rational legalization program of some type.
With a remaining docket of 200,000 to 350,000 cases that actually need to be litigated, and a more disciplined and professional DHS that respects court time and follows the same type of prosecutorial discretion guidelines as almost every other law enforcement agency in America, an independent Immigration Court with today’s number of Immigration Judges could actually maintain an ideal 6-18 month “decision cycle” without building new backlog, and most importantly, without denying Due Process or fundamental fairness to anyone. It actually could fulfill it’s once-stated (but forgotten under Bush and Obama and then trashed by Sessions) vision of “being the world’s best tribunals, guaranteeing fairness and Due Process for all.”
What a difference honest, rational administration that actually encouraged compliance with the laws (including asylum and other protection laws) and our Constitution, instead of mocking and violating them, could make!
Statement of Former Immigration Judges and BIA Members Opposing IJ Quotas
As former Immigration Judges and BIA Members, we join our former colleagues in the NAIJ in decrying the imposition of much-criticized performance quotas on sitting Immigration Judges. Experience has demonstrated that it is futile to protest to the present Attorney General and his appointed EOIR Director, who have repeatedly demonstrated a callous disregard for due process, fundamental fairness, or judicial independence in the immigration courts. Jeff Sessions has repeatedly demonstrated his personal bias against both immigrants and judges. With the help of his EOIR Director, James McHenry, Sessions has taken a series of steps designed to strip the judges that he controls of all of the independence and powers that distinguish them as judges, and thus turn them into assembly-line workers. And because of Sessions’s disdain for immigrants, in his mind, those assembly lines should be issuing deportation orders, at faster speeds and in larger numbers. Never before, in our experience, has EOIR so directly and strongly undermined the decisional independence of Immigration Judges.
We therefore appeal at present to the leadership of the Office of the Chief Immigration Judge. Holding the title of “judges” themselves, the Chief, Deputy Chief, and Assistant Chief Immigration Judges are entrusted to protect the integrity of the Immigration Courts and the rights and independence of the Immigration Judges they oversee. At present, the OCIJ leadership has completely abandoned these responsibilities, and have instead become complicit with those seeking to undermine the system they are charged to protect. Now more than ever, our country needs leadership within EOIR with the courage and integrity to stand up for what is right. Courage, integrity, and impartiality from political considerations are hallmarks of good judges. It is time for EOIR’s leadership to live up to the trust placed in them and begin to display such characteristics.
Likewise, individual judges must continue to be guided by the need to do what is just and right, and not what is expedient. We have faith that if forced to choose between meeting randomly imposed quotas and doing justice, those on the bench will choose the latter.
We further call for Congress to take the long overdue but critically needed action of making immigration judges part of an independent, Article I court that is outside of the Executive Branch and free from abuse or pressure by politically-appointed officials.
Lastly, we call on the public to observe and insist on accountability for those who abuse the public trust placed in them to dispense justice to those most vulnerable members of our society.
Hon. Steven Abrams
Hon. Sarah M. Burr
Hon. Jeffrey S. Chase
Hon. George T. Chew
Hon. Bruce J. Einhorn
Hon. Cecelia Espenoza
Hon. Noel Ferris
Hon. John F. Gossart, Jr.
Hon. Rebecca Jamil
Hon. William P. Joyce
Hon. Edward Kandler
Hon. Carol A. King
Hon. Elizabeth A. Lamb
Hon. Margaret McManus
Hon. Charles Pazar
Hon. George Proctor
Hon. Lory D. Rosenberg
Hon. Susan Roy
Hon. Paul W. Schmidt
Hon. Polly A. Webber
How do you uphold your oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic” when the chief “enemy of the Constitution” is Attorney General Jeff Sessions, your so-called “boss?”
The standard to keep in mind regarding the confirmation of a Supreme Court Justice is found in 28 U.S.C. section 455(a): “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Let’s set aside for now the fact that as drafted, the statute seems to apply only to men (did Congress really not envision women judges?). Comments have been made recently about Supreme Court nominee Brett Kavanaugh being “innocent until proven guilty.” That’s actually the standard for a defendant in a criminal trial. Because we as a society recognize how terrible it would be to send an innocent person to jail, possibly for many years, our legal system has established a standard that is willing to allow many who are guilty of crimes to go free, because we find that result preferable to ruining the life of an innocent person through wrongful conviction. Therefore, where the evidence establishes, for example, an 85 percent likelihood that the defendant committed the crime, a finding of not guilty is warranted, as the remaining 15% constitutes “reasonable doubt.” Of course, wrongful convictions still happen in practice, but nevertheless, the theory behind a presumption of innocence and a standard of “beyond a reasonable doubt” in criminal proceedings remains a noble one.
Not being allowed to serve as a Supreme Court justice is a far, far cry from being convicted of a crime and sent to prison. Realize that there are only nine people in the whole country who are Supreme Court justices. Many who have never been appointed to the Supreme Court have nevertheless gone on to lead happy, productive lives; some have amassed significant wealth, others have even held positions of trust and respect in society.
In choosing a Supreme Court justice, the ideal candidate is not someone who hasn’t been proven guilty beyond a reasonable doubt of some horrible act. Rather, it’s someone whose impartiality is beyond questioning. This is because in a democracy, faith in our judicial institutions is paramount. Society will abide by judicial outcomes that they disagree with if they believe that the “wrong” result was made by impartial jurists who were genuinely trying to get it right. Abiding by unpopular judicial decisions is the key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”
A primary reason Republicans are so anxious to “plow through” (as Mitch McConnell, using the rapiest terminology imaginable, unfortunately phrased it) the nomination of Kavanaugh is because of how he might rule on abortion rights, an issue of great importance to the party’s base. Nearly all of the Republican Senators seem to believe that as long as Kavanaugh has not been found guilty beyond a reasonable doubt of attempted rape, then he is fully qualified to serve as the deciding vote in taking away a right that has been constitutionally guaranteed to women for the past 45 years.
However, the three Republican Senators who at the last second requested an FBI investigation into the charges against Kavanaugh may have realized that their colleagues were not applying the correct standard. Abortion rights involve a woman’s right to control her own body. Yesterday, the country heard very detailed and articulate testimony from a highly credible and courageous witness. What she described involved her being deprived of the right to control her own body, by a male who physically pinned her down, covered her mouth when she tried to scream for help, and tried to forcibly remove her clothing against her will. Her violator then added insult to injury by laughing at her in a way that still haunts her to this day. The credible witness stated that she was 100 percent certain that the male who violated her rights in this despicable way was Kavanaugh.
The evidence goes directly to the question of the candidate’s view of a woman’s right to control her own body. The question that Senators should be considering is how much public trust there will be in the impartiality of a decision that involves such right in light of the past actions of the justice casting the potential deciding vote.
Senators who will nevertheless vote for Kavanaugh will say that in spite of the testimony, they cannot be sure of his guilt. Or they may state that they are strongly convinced of his innocence. Regardless, many people might reasonably question Kavanaugh’s impartiality based on the evidence they have heard. (And remember, there have been two other women leveling similar accusations as well). Even those who believe him innocent should at this point realize that in light of public perception, the appearance of impropriety should disqualify Kavanaugh from consideration.
Should those Senators deciding the issue ignore the above, we will all likely live with the consequences for decades to come. Although it would not undo the damage, let us hope the public will respond quickly and decisively in voting the offenders out of office in November.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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Others agree with Jeffrey:
Here’s what the NY Times Editorial board had to say:
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
Pool photo by Saul Loeb
What a study in contrasts: Where Christine Blasey Ford was calm and dignified, Brett Kavanaugh was volatile and belligerent; where she was eager to respond fully to every questioner, and kept worrying whether she was being “helpful” enough, he was openly contemptuous of several senators; most important, where she was credible and unshakable at every point in her testimony, he was at some points evasive, and some of his answers strained credulity.
Indeed, Dr. Blasey’s testimony before the Senate Judiciary Committee on Thursday was devastating.
With the eyes of the nation on her, Dr. Blasey recounted an appalling trauma. When she was 15 years old, she said, she was sexually assaulted by Judge Kavanaugh, then a 17-year-old student at a nearby high school and now President Trump’s nominee to the Supreme Court.
Her description of the attack, which she said occurred in a suburban Maryland home on a summer night in 1982, was gut-wrenchingly specific. She said Judge Kavanaugh and his friend, Mark Judge, both of whom she described as very drunk, locked her in a second-floor room of a private home. She said Kavanaugh jumped on top of her, groped her, tried to remove her clothes and put his hand over her mouth to keep her from screaming. She said she feared he might accidentally kill her.
“The uproarious laughter between the two and their having fun at my expense,” she said, was her strongest memory.
Judge Kavanaugh, when it was his turn, was not laughing. He was yelling. He spent more than half an hour raging against Senate Democrats and the “Left” for “totally and permanently” destroying his name, his career, his family, his life. He called his confirmation process a “national disgrace.”
“You may defeat me in the final vote, but you will never get me to quit,” Judge Kavanaugh said, sounding like someone who suddenly doubted his confirmation to the Supreme Court — an outcome that seemed preordained only a couple of weeks ago.
Pool photo by Erin Schaff
Judge Kavanaugh’s defiant fury might be understandable coming from someone who believes himself innocent of the grotesque charges he’s facing. Yet it was also evidence of an unsettling temperament in a man trying to persuade the nation of his judicial demeanor.
We share the sorrow of every sensible American who feels stricken at the partisan spectacle playing out in Washington. Judge Kavanaugh was doubtless — and lamentably — correct in predicting that after this confirmation fight, however it ends, the bitterness is only likely to grow. As he put it in his testimony, “What goes around, comes around,” in the partisan vortex that has been intensifying in Washington for decades now. His open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners.
Judge Kavanaugh’s biggest problem was not his demeanor but his credibility, which has been called in question on multiple issues for more than a decade, and has been an issue again throughout his Supreme Court confirmation process.
On Thursday, he gave misleading answers to questions about seemingly small matters — sharpening doubts about his honesty about far more significant ones. He gave coy answers when pressed about what was clearly a sexual innuendo in his high-school yearbook. He insisted over and over that others Dr. Blasey named as attending the gathering had “said it didn’t happen,” when in fact at least two of them have said only that they don’t recall it — and one of them told a reporter that she believes Dr. Blasey.
Judge Kavanaugh clumsily dodged a number of times when senators asked him about his drinking habits. When Senator Amy Klobuchar gently pressed him about whether he’d ever blacked out from drinking, he at first wouldn’t reply directly. “I don’t know, have you?” he replied — a condescending and dismissive response to the legitimate exercise of a senator’s duty of advise and consent. (Later, after a break in the hearing, he apologized.)
Judge Kavanaugh gave categorical denials a number of times, including, at other points, that he’d ever blacked out from too much drinking. Given numerous reports now of his heavy drinking in college, such a blanket denial is hard to believe.
In contrast, Dr. Blasey bolstered her credibility not only by describing in harrowing detail what she did remember, but by being honest about what she didn’t — like the exact date of the gathering, or the address of the house where it occurred. As she pointed out, the precise details of a trauma get burned into the brain and stay there long after less relevant details fade away.
She was also honest about her ambivalence in coming forward. “I am terrified,” she told the senators in her opening remarks. And then there’s the fact that she gains nothing by coming forward. She is in hiding now with her family in the face of death threats.
Perhaps the most maddening part of Thursday’s hearing was the cowardice of the committee’s 11 Republicans, all of them men, and none of them, apparently, capable of asking Dr. Blasey a single question. They farmed that task out to a sex-crimes prosecutor named Rachel Mitchell, who tried unsuccessfully in five-minute increments to poke holes in Dr. Blasey’s story.
Eventually, as Judge Kavanaugh testified, the Republican senators ventured out from behind their shield. Doubtless seeking to ape President’s Trump style and win his approval, they began competing with each other to make the most ferocious denunciation of their Democratic colleagues and the most heartfelt declaration of sympathy for Judge Kavanaugh, in a show of empathy far keener than they managed to muster for Dr. Blasey.
Pressed over and over by Democratic senators, Judge Kavanaugh never could come up with a clear answer for why he wouldn’t also want a fair, neutral F.B.I. investigation into the allegations against him — the kind of investigation the agency routinely performs, and that Dr. Blasey has called for. At one point, though, he acknowledged that it was common sense to put some questions to other potential witnesses besides him.
When Senator Patrick Leahy asked whether the judge was the inspiration for a hard-drinking character named Bart O’Kavanaugh in a memoir about teenage alcoholism by Mr. Judge, Judge Kavanaugh replied, “You’d have to ask him.”
Asking Mr. Judge would be a great idea. Unfortunately he’s hiding out in a Delaware beach town and Senate Republicans are refusing to subpoena him.
Why? Mr. Judge is the key witness in Dr. Blasey’s allegation. He has said he has no recollection of the party or of any assault. But he hasn’t faced live questioning to test his own memory and credibility. And Dr. Blasey is far from alone in describing Judge Kavanaugh and Mr. Judge as heavy drinkers; several of Judge Kavanaugh’s college classmates have said the same.
None of these people have been called to testify before the Senate. President Trump has refused to call on the F.B.I. to look into the multiple allegations that have been leveled against the judge in the past two weeks. Instead the Republican majority on the committee has scheduled a vote for Friday morning.
There is no reason the committee needs to hold this vote before the F.B.I. can do a proper investigation, and Mr. Judge and possibly other witnesses can be called to testify under oath. The Senate, and the American people, need to know the truth, or as close an approximation as possible, before deciding whether Judge Kavanaugh should get a lifetime seat on the nation’s highest court. If the committee will not make a more serious effort, the only choice for senators seeking to protect the credibility of the Supreme Court will be to vote no.
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Emily Bazelon of the NY Times Sunday Magazine wasn’t convinced by BKavs either:
Twice as a reporter, I’ve interviewed women who have accused men of sexual assault and the men they accused. In both cases, the women looked me in the eye and told me about how they’d been raped, and then the men looked me in the eye and told me they’d never raped anyone. All four people spoke with force and emotion. In the moment, I wanted to believe each one. It’s uncomfortable to imagine that someone who seems wholly sincere is not. It’s confusing — it seems unfeeling — to turn away from someone who makes a vehement claim of truth.
If you watched Thursday’s hearing, in particular Christine Blasey Ford’s opening statement and Brett Kavanaugh’s, maybe you know what I mean. So then what? As a reporter, I looked for corroborating evidence as a means of assessing each person’s veracity. What else could I find out, and how did their accounts stack up against that? This is how investigators do their work. They find out as much as they can about the surrounding circumstances. Then it’s up to judges to weigh the facts and decide which account is most credible.
Judge Kavanaugh didn’t sound as if he was thinking like a judge. His partisan attack on Democrats wasn’t judicial, in any sense of the word. His approach to evidence wasn’t either.
The difficulty for holding Judge Kavanaugh accountable for what Dr. Blasey says was her assault is the lack of a certain kind of corroboration for her account. The other people she has named who were at the small gathering where she says the assault took place don’t remember such a gathering. Two of them are Judge Kavanaugh’s high school friends. One of them is Dr. Blasey’s friend.
But there’s no reason any of them would have remembered such a gathering. She says it was a spur-of-the-moment get-together, after swimming and before a party to come. And it took place 36 years ago. The gathering she describes is also consistent with one of Judge Kavanaugh’s calendar entries about drinking with his friends.
We also have more than Dr. Blasey’s word. Years ago, she talked about this assault, and named Judge Kavanaugh, with her husband and her therapist, and at a later time, she told a few close friends. They back her up on this. One memorable detail from her testimony has the ring of truth, in its specificity: Her assault came up in couples therapy with her husband because the traumatic memory triggered anxiety and claustrophobia, and that made her insist on adding a second front door to her house, to his understandable confusion. This is not the kind of fact a person makes up.
Dr. Blasey was firm about closing a door that would allow us to reconcile her accusation and Judge Kavanaugh’s denial. She is not mixed up about the identity of her assailant, she said. She is “100 percent certain” it was Judge Kavanaugh. The comfortable path for the judge’s supporters — believe she was assaulted, disbelieve he committed the assault — is gone. Her certainty was a pillar of the testimony she put the full weight of herself behind — her professional identity, her character, the careful consideration and precision about facts that was evident as she spoke.
Judge Kavanaugh refused to open another door that would allow the public, and the Senate, to reconcile these accounts of accusation and denial. He ruled out the possibility that he could not remember assaulting Dr. Blasey because he blacked out or was otherwise incapacitated by drinking. He was just as adamant about categorically denying the other sexual misconduct he has been accused of by two other women.
Judge Kavanaugh also didn’t much back off his denials of being a hard drinker or an aggressive drunk. This is his big weakness, stacked against other facts that have been gathered. Several classmates from his college days at Yale paint an entirely different picture of him as a drinker than the innocent one he offered of being a person who “likes beer.” So do his own yearbook entries and speeches. If you’re a judge who believes in strictly reading a text for its plain meaning, as Judge Kavanaugh says he is, his dismissals and wispy explanations aren’t persuasive.
If you’re thinking like a judge aiming to discover the truth, it’s also hard (impossible?) to justify the lack of a neutral investigation and the absence of other witnesses, beginning with Mark Judge, the friend of Judge Kavanaugh’s, whom Dr. Blasey says saw and participated in the assault, but not ending with him.
The task of a judge or a Supreme Court justice is to seek the truth. The most important qualities for the job are probity and veracity. Nobody was on trial at the Senate Judiciary Committee. But only one person — Judge Kavanaugh — was asking to be elevated to the highest court in the land.
Emily Bazelon is a staff writer at the magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a best-selling author and a co-host of the Slate Political Gabfest, a popular podcast.
Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Thursday.
Jim Bourg/AFP/Getty Images
On Thursday, after listening to testimony from Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, several Republican senators said they would vote to confirm the nominee because it’s impossible to determine which witness—Ford or Kavanaugh—is telling the truth. Actually, it’s easy. We don’t know for certain whether Kavanaugh sexually assaulted Ford. But we do know that Kavanaugh lied repeatedly in his testimony to the Senate Judiciary Committee. Here are some of his lies.
1. “It’s been investigated.” The White House has ignored multiple requests from Democratic senators to authorize FBI interviews with the alleged witnesses in the case. In particular, there has been no FBI or Judiciary Committee interview with Mark Judge, Kavanaugh’s accused accomplice in the alleged assault. In fact, Judge has fled to a hideout in Delaware to avoid being called to testify.
During the hearing, several Democratic senators pleaded with Kavanaugh to call for FBI interviews so that the truth could be resolved. Kavanaugh refused. When Sen. Chris Coons pointed out that the FBI had needed only a few days to complete interviews in the Clarence Thomas–Anita Hill case, Kavanaugh said even that was too much, because the Judiciary Committee had already examined his case. “It’s been investigated,” he told Coons.
No honest judge would say that. None of the alleged witnesses, other than Ford and Kavanaugh, has been interviewed. Instead, the alleged witnesses have issued short statementsof nonrecollection and have asked not to testify. The committee’s Republican majority, eager to brush the case aside, has accepted these statements and has refused to ask further questions. In his testimony, Kavanaugh falsely claimed that FBI interviews would add nothing. Agents would “just go and do what you’re doing,” he told the senators.
Kavanaugh claimed that a vague statement of nonrecollection from Judge’s lawyer was sufficient “testimony.” He dismissed calls for Judge to appear before the committee, arguing that his own testimony was adequate. But Kavanaugh also mocked the committee’s Democrats, who lack the power of subpoena, by telling them to go talk to Judge. When Sen. Patrick Leahy asked whether Bart O’Kavanaugh, a drunken character in Judge’s book, was meant to represent Brett Kavanaugh, the nominee passed the buck to his testimony-evading friend: “You’d have to ask him.”
2. “All four witnesses say it didn’t happen.” Each time senators pleaded for an FBI review or a more thorough investigation by the committee, Kavanaugh replied that it wasn’t necessary, since all the people Ford claimed had been at the gathering where the alleged assault occurred had rejected her story. Eight times, Kavanaugh claimed that the witnesses “said it didn’t happen.” Three times, he said the witnesses “refuted” Ford’s story. Four times, Kavanaugh claimed that “Dr. Ford’s longtime friend,” Leland Keyser, had affirmed that the gathering never occurred.
That’s a lie. Keyser has stated that she doesn’t recall the gathering—she was never told about the attack, and she was supposedly downstairs while it allegedly occurred upstairs—but that she believes Ford’s story. That isn’t corroboration, but it isn’t refutation or denial, either. During the hearing, Sen. Cory Booker pointed this out to Kavanaugh, reminding him that in an interview with the Washington Post, Keyser “said she believes Dr. Ford.” Kavanaugh ignored Booker’s correction. Ninety seconds later, the nominee defiantly repeated: “The witnesses who were there say it didn’t happen.”
3. “I know exactly what happened that night.”Kavanaugh made several false or widely contradicted statements about his use of alcohol. This is significant because Judge has admitted to drunken blackouts, which raises the possibility that Judge and Kavanaugh don’t remember what they did to Ford. During the hearing, Sen. Richard Blumenthal asked about Kavanaugh’s participation in a night of drunken revelry at Yale Law School. Kavanaugh assured Blumenthal, “I know exactly what happened the whole night.” Later, Booker asked Kavanaugh whether he had “never had gaps in memories, never had any losses whatsoever, never had foggy recollection about what happened” while drinking. Kavanaugh affirmed that he had never experienced such symptoms: “That’s what I said.”
These statements contradict reports from several people who knew Kavanaugh. Liz Swisher, a friend from Yale, says she saw Kavanaugh drink a lot, stumble, and slur his words. “It’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess,” she told the Washington Post. And in a speech four years ago, Kavanaugh described himself and a former classmate “piecing things together” to figure out that they’d “had more than a few beers” before an alcohol-soaked banquet at Yale Law School.
4. “I’m in Colorado.” As evidence that the charges against him were ludicrous, Kavanaugh told the committee that he had been falsely accused of committing an assault more than 1,500 miles away. He claimed that according to his accusers, “I’m in Colorado, you know, I’m sighted all over the place.” But a transcript of Kavanaugh’s Sept. 25 interview with Judiciary Committee staffers shows no claim of an offense in Colorado. The transcript says that according to a woman from Colorado, “at least four witnesses” saw Kavanaugh shove a woman “up against the wall very aggressively and sexually” in 1998. But Kavanaugh was specifically told during the interview that the scene of the alleged incident was in D.C., where he was living at the time.
Kavanaugh also told other whoppers. He claimed that his beer consumption in high school was legal because the drinking age in Maryland was 18. In reality, by the time he was 18, the drinking age was 21. He claimed that his high school yearbook reference to the “Beach Week Ralph Club” referred in part to his difficulty in holding down “spicy food.” He claimed that the entry’s jokes about two sporting events he and his high school buddies had watched—“Who won that game, anyway?”—had nothing to do with booze. And he defended his refusal to take a polygraph test on the grounds that such tests aren’t admissible in federal courts—neglecting to mention that he had endorsed their use in hiring and law enforcement.
Maybe Kavanaugh is an honest man in other contexts. Maybe he’s a good husband, a loving dad, and an inspiring coach. And maybe there’s no way to be certain that he assaulted Ford. But one thing is certain: He lied repeatedly to the Judiciary Committee on Thursday. Some of his lies, about the testimony of witnesses and the integrity of investigations, go to the heart of our system of justice. Any senator who votes to put this man on the Supreme Court is saying that such lies don’t matter.
Photo illustration by Slate. Photos by Drew Angerer/Getty Images and Andrew Harnik-Pool/Getty Images.
At this moment of feverishly intense partisanship, it takes a great deal of courage to tiptoe away from your own tribe. Sen. Jeff Flake has not yet announced that he is willing to part for good; in the end, he may yet betray his professed principles and cast his vote to confirm Brett Kavanaugh. And yet, we should not underestimate how much strength it took for him to demand an investigation into Christine Blasey Ford’s serious allegations of sexual assault and delay the judge’s confirmation by at least a week. For now, he has proved to be one of the few people in the Senate—and perhaps one of the few in the whole country—who have insisted on taking Ford’s allegations seriously even though he actually shares most of Kavanaugh’s judicial views.
For the sake of our country, all of us should now hope that the FBI manages to uncover conclusive evidence that either supports or dispels Ford’s accusations. Unfortunately, that seems unlikely. So the big risk we now face is that the same hell we have lived through for the past 48 hours will be repeated in even more farcical form next week. And that is why it’s very important to use this time to reflect seriously on how judicious people—and perhaps especially senators like Flake who profess to be conscientious conservatives—should vote if they have not made up their mind about the allegations.
It is painfully obvious that most Republican senators will vote to confirm Kavanaugh if the allegations against him are anything short of iron-clad; indeed, one shocking poll suggests that a majority of Republicans voters, and nearly half of evangelicals, would support his confirmation even if they did believe that he is guilty. It is also obvious that most Democrats will vote against his confirmation even in the unlikely case that the FBI should somehow manage to disprove Ford’s allegations; indeed, Kavanaugh’s extreme views on executive power provide a strong reason for any defender of liberal democracy to oppose his nomination. And yet, I think that one very important consideration has largely been overlooked.
Let us assume, for the sake of argument, that Kavanaugh is an innocent man. If that’s the case, the raw anger he displayed during Thursday’s confirmation hearing is certainly understandable. While we might wish for a public figure to keep his poise even when his reputation is being impugned, it is perfectly human to lose your countenance under such circumstances.
But even under that charitable interpretation, Kavanaugh’s performance in front of the Senate Judiciary Committee makes him eminently unfit to sit on the highest court of the land.
Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of Americanpolitics.
A justice on the Supreme Court has to rule on a whole host of issues that are of huge partisan significance: If he is confirmed, he will have to settle substantive questions of public policy—from abortion rights to the health care mandate—on which Democrats and Republicans have hugely differing preferences. Just as importantly, he will also help to set the parameters that are supposed to ensure that Democrats and Republicans can appeal for the votes of their fellow citizens on fair terms.
But how can somebody who has accused Democrats of a “calculated and orchestrated political hit” be seen as impartial when he rules on a gerrymandering case that could deliver a huge advantage to Republicans? How can somebody who describes serious allegations of sexual assault as “revenge on behalf of the Clintons” be expected to give both sides a fair hearing if the outcome of a presidential election should once again be litigated in front of the Supreme Court? And how can somebody who denounces the “frenzy on the left” to derail his nomination be trusted to ensure that the left’s most vocal enemy, Donald Trump, does not overstep the bounds of his constitutional authority?
Because of Mitch McConnell’s refusal to hold hearings on the confirmation of Merrick Garland during the last year of Barack Obama’s presidency, the current composition of the Supreme Court is already tainted. Now, the confirmation of as nakedly partisan a jurist as Kavanaugh would go a long way toward destroying whatever remains of the Supreme Court’s legitimacy. And this would not only tank the trust Americans have in the last branch of government that has, according to polls, consistently been more popular than secondhand car salesmen; it also significantly raises the likelihood that Democrats will engage in yet another round of tit for tat.
Precisely because partisans need to be able to trust that courts can enforce the rules for fair political competition between them and their adversaries, attempts by a political party to change the ideological makeup of the judiciary are extremely dangerous to the survival of democratic institutions. That’s why (direct or indirect) court-packing schemes have been key elements of the authoritarian takeovers in Russia, Turkey, and Venezuela. And it’s also why the current governments in Poland and Hungary are playing constitutional hardball to ensure that judges they appoint command a majority on the most important courts in their respective countries.
There can therefore be little doubt that any attempt by Democrats to pack the Supreme Court, for example, by expanding its size, would be another step in a tit-for-tat spiral at whose end autocracy awaits. And yet, recent events will make it very hard for those voices within the Democratic Party that recognize this danger to prevail. If one side is so willing to abuse precedent and decency to, as Kavanaugh might put it, screw the libs, it becomes very difficult for the other side not to reciprocate in kind.
This is why Kavanaugh’s confirmation would not just be a disaster in itself; it would also be a strong reason to become even more pessimistic about the future of American politics. The GOP and Trump are now more fully aligned than ever. Our country’s partisan divide is deeper than it has been in living memory. The mutual hatred and incomprehension is more acute than it has been in decades. If Kavanaugh is confirmed, it’s very, very difficult to envisage what path could possibly lead us out of this nightmare.
Jeff Flake has acted with much more courage and decency than most liberals care to admit. But the responsibility that now rests on his—and Sen. Lisa Murkowski’s and Sen. Susan Collins’—shoulders is even greater than he might realize.
Photo illustration by Slate. Photos by Erin Schaff-Pool/Getty Images and Gabriella Demczuk-Pool/Getty Images.
When Thursday’s Senate Judiciary Committee hearing on the nomination of Judge Brett Kavanaugh was over, it wasn’t quite clear what had hit those of us who’d been sitting in the room. The hearing room in Dirksen is tiny, and while the slammed binder and the escalating shouting of the nominee might have looked pretty dramatic on TV, inside the chamber, the effect was that of an out-of-control house party. Too loud, too scary, too close, too real. Like being locked inside something terrible with the music cranked up.
Anita Hill once told me that, in 1991, Clarence Thomas had race and she had only gender. But now, in 2018, Brett Kavanaugh had rage and Christine Blasey Ford had only gender. With the Senate Judiciary Committee moving on Friday to advance Kavanaugh’s nomination to the full Senate without any further inquiry around Blasey Ford’s damning and plainly credible testimony that Kavanaugh had gleefully and drunkenly sexually assaulted her at a 1982 house party as his buddy Mark Judge watched, it appears as though his rage alone will have been enough to earn him life tenure on the highest court in the land.
The dynamic of Thursday’s hearing was consistent: He had fury, and contempt, and seething threats that the republic would pay if he were thwarted. She had to functionally lie back and try not to infuriate anyone, as Republicans cowered behind the female prosecutor, Rachel Mitchell, they had brought on to interrogate her. That was until it was Kavanaugh’s turn to speak, when they quickly jettisoned that paper-thin pretense of investigative “independence” and joined Kavanaugh to form a chorus of angry shouting men. They towered silently over Mitchell for the first half of the hearing, then summarily ignored her when she wasn’t offering questions fast or furious enough to protect their nominee.
At least Anita Hill was insulted, demeaned, and discredited to her face. Ford was patronized, thanked, and told that she was very, very credible. Over and over she was told she’d been given a “safe space” to tell her story; as if a safe space substitutes for reasoned process and investigation. She was given a safe space and then dismissed as though she were some character in a very sad French movie that had been very affecting indeed but had nothing to do with the great man and his destiny. After presenting an undeniable narrative—and one the nobody ever really attempted to specifically refute—she was told that her credibility didn’t count for anything because a man was bellowing and injured, that whatever had happened to her was not as important as his pain. And Senate Republicans—having tucked Mitchell back into her naughty chair—were delighted to bellow and yelp of horrid injuries they too had sustained alongside their guy.
Of course, the purported wrong was the process. Again, the villain of the piece was Judiciary Committee ranking member Sen. Dianne Feinstein, who had kept Ford’s July letter outlining one of Kavanaugh’s alleged crimes in confidence at her request until eventually forwarding it to the FBI for inquiry earlier this month. Don’t be fooled, though: Feinstein would have been screamed at just as furiously had she come forward weeks or months earlier with Ford’s report, and another pretext for dismissing Ford and her witnesses would have been concocted.
At least Anita Hill was insulted, demeaned, and discredited to her face.
As GOP rage gathered steam, we were told that this needed to be treated as a criminal proceeding—innocent until proven guilty—and the Republicans contended that there was no evidence of criminal conduct. But, of course there was evidence: compelling firsthand testimony and numerous supporting accounts. And of course, they refused to subpoena the key witness to the event, opting instead for the “we take his word for it” route of investigation by registered letter. The “hearing,” as expected, had been staged as a puppet show of “credibility.” And absent witnesses, or evidence, or any mechanism for fact finding, both sides could be called credible and Brett Kavanaugh could still be confirmed. On Friday, Sen. Jeff Flake—perhaps the Senate’s greatest profile in cowardice masquerading as courage—said that he would cast the key vote to advance Kavanaugh’s nomination out of the committee. Despite the lack of anything resembling a meaningful investigation, which Ford and the other women who have accused Kavanaugh of sexual violence have repeatedly requested, and the judge has repeatedly declined to request, it now appears Kavanaugh will be confirmed. His fate rests in the hands of Sens. Susan Collins, Lisa Murkowski, and Joe Manchin.* Given her mind-bending bravery and likely folk-hero status, one hopes that Ford will not now come to believe that her decision was made in vain. But it was impossible on Friday morning not to think of her own description of her reluctance to come forward out of fear that she would “just be jumping in front of a train that was headed to where it was headed anyway.”
Ultimately, he had rage and she had gender, and a “job interview” was recast as though it would result in a lifelong criminal conviction with a death sentence on the line for the man in the dock. Calling no witnesses and accepting no supporting testimony were a perfect way to ensure that he would be innocent of all charges. She had gender. They were sorry for her loss.
Brett Kavanaugh is never going to understand that women don’t sort themselves into those upon which he bestows his munificence (clerks, girls in plaid skirts) and those he can shout at, and bully, like Feinstein and Sen. Amy Klobuchar. Feminism doesn’t mean you get to pick which women you patronize and which you can insult. Brett Kavanaugh is also unlikely to understand that justice doesn’t mean demanding your lifetime appointment because it’s your time.
Put aside whether any sane litigant can have any confidence in the justice system after the man who will be the decisive vote on the court made it manifestly clear that he believes half the country, and the media, and liberal dark money were all in on a conspiracy to take him out. Because of the Clintons. This wasn’t ultimately a hearing about whether Kavanaugh deserved to be elevated to the high court. It was a blind partisan tantrum in which he dragged the judicial branch down to a place of ugliness and rancor from which it will not soon recover.
Others have detailed the incomplete answers, the fact that he wasn’t questioned correctly about his calendar, the ways in which his claims that he had been exonerated by other witnesses were absolutely distorted, and the laughable claims about his well-documented and widely known drinking and his “sensitive stomach.” While Ford offered exacting answers, Kavanaugh repeated half-truths and conspiracy theories and sneered and slammed through a fog of rage. It was a perfect contrast not just to Ford’s conduct, but to that of Merrick Garland, who never said a word when the seat to which he was entitled was yanked away.
There were two distinct moods in the Kavanaugh hearing: Ford evoked undistilled sadness and vulnerability; Kavanaugh evoked raw fear that if he were ever crossed, he would lose control. Do. Not. Make. Him. Angry. is the new judicial temperament. It is the perfect metaphorical springboard to the highest court in the land, where he will say he’s calling balls and strikes while he froths with contempt at those he believes coordinated against him: Be very afraid. This is what we will call “justice” now.
Correction, Sept. 28, 2018: Due to an editing error, this post originally misstated that Collins, Murkowski, and Manchin were said to be voting in a bloc with Flake.
At the time, I surmised (quite correctly in retrospect) that BKavs’s willingness to distort the law was motivated to some extent by his desire to burnish his reactionary credentials for the Supreme Court appointment for which he was groomed by the GOP right wing and to which he and his supporters have always believed he is entitled. Nothing comes through from BKavs and the GOP Senators supporting him more than an arrogant sense that he is absolutely entitled to this appointment.
So, how do I come down on the BKavs mess? Well, I suspect that the results of the FBI investigation will be inconclusive. That being the case, the GOP will confirm him and he will become Justice Kavanaugh.
That being said, I thought that his emotional partisan attack on Democratic Senators, his overt rudeness to Sen. Amy Klobuchar, and his unsupported “conspiracy theory” re the Clintons showed that he is exactly what his critics have been saying all along: an injudicious and disingenuous partisan.
No matter what really happened with Ford, he is “damaged goods” who can’t credibly serve on the Supremes. A decent person would withdraw at this point for the good of the country.
Certainly, Trump can find a reactionary GOP female judge with no personal baggage to carry the flag. He was actually pretty stupid to nominate BKavs in the first place rather than a female vetted by the Heritage Foundation whom the Dems couldn’t have touched.
I assume that Senator L. Graham is auditioning for Gonzo’s job after the midterms. He seems to forgotten what he and his GOP buddies did to Judge Merrick Garland — a very decent person and good jurist who never even got a chance to be heard at all. The GOP just decided that “advice and consent” meant “stonewall if you don’t like the President.” And as a moderate and polite “center left” jurist, Judge Garland certainly would have been a more appropriate pick for the Supremes than BKavs! But, power is power, and the GOP has it right now — the Dems don’t.
Nothing is likely to stop Judge’s Kavanaugh’s elevation at this point. But, as Jeffrey suggests, getting to the ballot box could make BKavs the last such appointment for some time.
Lee Brand, Partner at Simpson Thacher & Bartlett LLP in Palo Alto, CA and his amazing group of brief write gave us the good news this afternoon and sent along these orders granting the rehearing en banc and setting OA:
This is one of many important Federal Court and BIA cases in which “Our Gang” under the leadership of Judge Jeffrey Chase and Judge Lory Rosenberg have filed amicus briefs informing the courts of the realities of Immigration Court practice and the current sad state of Due Process in the courts. We’re working on some additional “assignments.” We’ll keep fighting for fairness, Due Process, and judicial independence as long as we’re “alive and kicking.”
Here’s a brief report form Jeffrey:
I am sending this to our now much larger full group. One of the early amicus briefs in which 11 members of our gang participated was filed in support of a motion for rehearing en banc before the 9th Cir. in CJLG v. Sessions. In that case, an IJ went forward with the asylum hearing of a 15 year old respondent who was unable to retain counsel, telling his mother that she would represent him. Not surprisingly, asylum was denied based on the respondent’s inability to state a cognizable social group and to establish the government was unable/unwilling to control. The ACLU filed a petition for review in the 9th Cir. arguing that minors should be assigned counsel in removal proceedings, which was dismissed by a 3 judge panel.
Today, the 9th Cir. granted the motion for rehearing en banc; oral arguments are set for Dec. 10.
So far, of the cases in which our gang submitted amicus briefs, there have been successful outcomes in Negusie (before the BIA), and in Matumona v. Sessions in the 10th Cir., in which OIL stipulated to remand for the BIA to consider the arguments raised on appeal (which concerned the impact of remote detention centers on the respondent’s ability to retain counsel).
It’s an honor to be a member of “Our Gang” and to have the opportunity to work with the many outstanding pro bono counsel and firms throughout the country who are part of the “New Due Process Army.” The efforts of these wonderful lawyers represent the real commitment to the “rule of law” in immigration and stand in sharp contrast with the jaundiced views and insults to the legal profession publicly proclaimed by Jeff Sessions.
If you are a retired Immigration Judge or BIA Appellate Immigration Judge and would like to join our collegial group effort, please contact Jeffrey, Lory, or me. It’s a rewarding experience and a great opportunity to use your expertise to “make a difference.” It’s also a great chance to keep in touch with your judicial colleagues. It’s not all work (that’s where our wonderful pro bono lawyers come in) — we also have some fun, good times, and fond recollections in the process. (Judge Gus “Hang 10” Villageliu has promised free (non-web) surfing lessons to all new members once hurricane season is past!)
In addressing 44 newly-hired immigration judges earlier this week, their new boss, Jeff Sessions, demonstrated not only his usual level of bias (to a group charged with acting as impartial adjudicators), but a very strange grasp of how our legal system works.
Sessions told the new class of judges that lawyers “work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interest. Theirs is not the duty to uphold the integrity of the Act.”
Later in his remarks, Sessions opined that “when we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation.”
To me, the above remarks evince a complete misunderstanding of how our legal system works.
In 1964, the U.S. Supreme Court decided Katzenbach v. McClung, a landmark civil rights case. In order to find that the federal Civil Rights Act applied to a local, family-owned barbecue restaurant in Alabama, DOJ attorneys persuaded the Supreme Court that there was federal jurisdiction under the Constitution’s Commerce Clause because of segregation’s impact on interstate commerce. I’m no Constitutional law expert, but I’m not sure that when its authors afforded Congress the power “to regulate Commerce with foreign Nations, and among the several States,” that this is what they had in mind. Was creatively interpreting the Commerce Clause in order to end segregation “like water seeping through an earthen dam” to get around the clear words of the Constitution? Did ending segregation constitute, in Sessions’s opinion, doing violence to the rule of law out of a sense of sympathy for the black victims of Alabama’s racist policies?
Every positive legal development is the result of an attorney advancing a creative legal argument, often motivated by a sense of sympathy for unfair treatment of a class of individuals in need of protection. Many landmark decisions have resulted from such attorneys offering the court an unorthodox but legally sound solution to a sympathetic injustice. This is actually how the legal system is supposed to operate. Our laws are made by Congress, and not the Executive branch. When Congress drafts these laws, they and their staffers are well aware of the existence of lawyers and judges and their ability to interpret the statutory language.
Had Congress not wanted our asylum laws to be flexible, allowing them to be interpreted in myriad ways to respond to changing types of persecution carried out by different types of actors, it could have said so. When the courts found that victims of China’s coercive family planning policies did not qualify for asylum, Congress responded by amending the statutory definition of “refugee” to cover such harm. In the four years following the BIA’s conclusion that victims of domestic violence qualified for asylum, Congress notably did not enact legislation barring such grants. To the contrary, after Jeff Sessions issued his decision with the intent of preventing such grants, a Republican-led Congressional committee unanimously passed a measure barring funding for government efforts to carry out Sessions’ decision, a clear rebuke by the legislative branch of Sessions’s view that such claims are illegitimate. https://www.washingtonpost.com/politics/gop-led-house-committee-rebuffs-trump-administration-on-immigrant-asylum-claim-policy/2018/07/26/3c52ed52-911a-11e8-9b0d-749fb254bc3d_story.html?utm_term=.809760180e2a.
Interestingly, Sessions finds it perfectly acceptable to use unorthodox interpretations of the law when it serves his own interests. For example, he argues that he is upholding “religious liberty” in defending the right of bigots to discriminate against LGBTQ individuals. https://www.advocate.com/politics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force. The conclusion drawn from this inconsistency is that Sessions does not oppose creative interpretations of the law; he rather believes that the only proper interpretation of the law is his.
One of the problems with this approach is that Sessions doesn’t actually know anything about the law of asylum. And yet he somehow feels entitled to belittle the analysis of the leading asylum experts in academia, the private bar, USCIS, ICE, and EOIR, all of whom have repeatedly found victims of domestic violence to satisfy all of the legal criteria for asylum. In its 1985 decision in Matter of Acosta, (a case that Sessions cited favorably in his controversial decision), the BIA noted that the ground of “particular social group” was added to the 1951 Convention on the Status of Refugees (which is the basis for our asylum laws) “as an afterthought.” The BIA further noted that “it has been suggested that the notion of ‘social group’ was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of refugee.” (The full decision in Acosta can be read here: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2986.pdf).
As a young attorney, I learned (from the late, great asylum scholar Arthur Helton) that at the last moment, the Swedish plenipotentiary to the 1951 Convention pointed out that there were victims of Hitler and Stalin in need of protection who did not fall under the other four Convention grounds of race, religion, nationality, or political opinion. A fifth, catch-all ground was therefore proposed to serve as a “safety net” in such cases. In other words, the reason the particular social group category was created and is a part of our laws was because the Convention’s drafters, perhaps “like water seeping through an earthen dam,” created an intentionally nebulous legal standard out of a sense of sympathy for victims of injustice. The ground was therefore created to be used for the exact purpose decried by Sessions.
Because of the strength of such legal authority, Sessions’s decision in Matter of A-B-, in spite of dicta to the contrary, actually still allows for the granting of domestic violence and gang violence-based asylum claims. The decision criticized the BIA’s precedent decision in Matter of A-R-C-G- for reaching its conclusion without explaining its reasoning in adequate detail. However, where the record is properly developed, a legally solid analysis can be shown to support granting such claims even under the standards cited by Sessions.
This is what makes Sessions comments to the new class of immigration judges so disturbing. Having appointed judges whom his Justice Department has found qualified, he should now leave it to them to exercise their expertise and independent judgment to interpret the law and determine who qualifies for asylum. But in declaring such cases to lack validity, belittling private attorneys innovative arguments, and equating the granting of such claims to doing violence to the rule of law, Sessions aims to undermine right from the start the judicial independence of the only judges he controls. EOIR’s management has demonstrated that it has no intention of pushing back; instead, it asks how high Sessions wants the judges to jump.
Knowing this, how likely is one of the 44 new judges to grant asylum to a victim of domestic violence who has clearly met all of the legal criteria? New immigration judges are subject to a two-year probationary period. It’s clear that a grant of such cases under any circumstances will be viewed unfavorably by Sessions. In a highly publicized case, EOIR’s management criticized a judge in Philadelphia whose efforts at preserving due process they bizarrely interpreted as an act of disobedience towards Sessions, and removed the case in question and more than 80 cases like it from the judge’s docket.
So if a new judge, who may have a family to support, and a mortgage and college tuition to pay, is forced to choose between applying the law in a reasoned fashion and possibly suffering criticism and loss of livelihood, or holding his or her nose and adhering to Sessions’s views, what will the likely choice be?
Sessions concluded his remarks by claiming that the American people “have spoken in our laws and they have spoken in our elections.” As to the latter, Americans voted against Trump’s immigration policies by a margin of 2.8 million votes. As to the former, Congress has passed laws which have been universally interpreted by DHS, EOIR, and all leading asylum scholars as allowing victims of domestic violence to be granted asylum based on their membership in a particular social group. It is time for this administration to honor the rule of law and to restore judicial independence to such determinations.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
A union representing the country’s 350 immigration judges slammed Attorney General Jeff Sessions for comments he made that suggested they were sidestepping the law and showing too much sympathy when handling certain cases.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said Monday in a speech to newly hired judges. “Your job is to apply the law – even in tough cases.”
Immigration judges, who work for the Department of Justice and are expected to follow guidelines laid out by the attorney general, said they believe Sessions was politicizing migrant cases.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokeswoman for the National Association of Immigration Judges and an immigration judge in San Francisco, told BuzzFeed News. “It did appear to be a one-sided argument made by a prosecutor.”
Ashley Tabaddor, president of the National Association of Immigration Judges, added that “we cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role.”
Sessions, an ideological ally of President Trump on immigration, has established additional restrictions on the types of cases that qualify for asylum and when certain cases can be suspended. He was involved in the White House’s controversial “zero tolerance” policy that led to family separations at the U.S.-Mexico border.
AARON REICHLIN-MELNICK of the American Immigration Council reports on Immigration Impact:
Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.
While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms. He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.
Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”
Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.
Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.
Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”
Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.
Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”
In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”
Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.
In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.
JEFF SESSIONS DEMANDS IMMIGRATION JUDGES SHOW NO SYMPATHY, SAYS IT DOES ‘VIOLENCE TO THE RULE OF LAW
BY
As the Trump administration continued to struggle to reunite hundreds of migrant children separated from their parents resulting from the president’s “zero-tolerance” policy, Attorney General Jeff Sessions told dozens of incoming immigration judges Monday to show no sympathy for those who appear before them in court.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said. “Your job is to apply the law—even in tough cases.”
Sessions, the most powerful attorney in the country as head of the Justice Department, was speaking to 44 new immigration judges in Falls Church, Virginia.
He also took aim at lawyers who represent immigrants who were caught illegally crossing the U.S.-Mexico border, suggesting they try to misconstrue immigration law “like water seeping through an earthen dam.” He told the judges it was their responsibility to “restore the rule of law” to the system.
. . . .
Read the rest of Ramsey’s article at the above link.
There is a simple term for justice not tempered by mercy, compassion, and sympathy: INJUSTICE. Indeed, the Fifth Amendment to the U.S. Constitution, which includes the essential Due Process Clause, was specifically intended to protect the populace against Executive overreach of the kind that England imposed on the Colonies prior to the Revolution. That’s exactly what we’re seeing under Jeff Sessions!
As most Immigration Judges recognize, Session’s overt White Nationalism, racial bias, and absurd claims that he is “restoring the rule of law” (when in fact he is doing the exact opposite) are totally out of control.
It’s time for a “Due Process intervention” by the Article III Courts. Sessions and the DOJ must be stripped of their untenable and unconstitutional control over the Immigration Courts. Appoint a “Special Master” — someone like retired U.S. Supreme Court Justice Anthony Kennedy — to run the Immigration Court System and restore Due Process and fairness until Congress does its job and creates an independent U.S. Immigration court outside the Executive Branch.
The problems aren’t going away under the Trump Administration. And, if the Article III Judiciary doesn’t act it will find itself crushed under thousands of defective removal orders that Sessions is urging the Immigration Judges to turn out without Due Process or the “fair and impartial” adjudication that it guarantees. The Article IIIs can run, but they can’t hide from this Constitutional crisis!
Sessions’s remarks are also an insult to all of the many current and former U.S Immigration Judges who, unlike Jeff Sessions, have been deciding “tough cases” for years, within the law, but with sympathy, understanding, humanity, and compassion which are also essential qualities for fair judging under our Constitutional system that Sessions neither understands nor respects. No wonder his own party judged him unqualified for an Article III judgeship years ago. He hasn’t changed a bit.
Attorney General Jeff Sessions on Monday warned incoming immigration judges that lawyers representing immigrants are trying to get around the law like “water seeping through an earthen dam” and that their responsibility is to not let them and instead deliver a “secure” border and a “lawful system” that “actually works.”
He also cautioned the judges against allowing sympathy for the people appearing before them, which might cause them to make decisions contrary to what the law requires.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” he said.
The comments immediately drew criticism from the union that represents the judges and from former judges.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” said Dana Marks, a spokesperson for the National Association of Immigration Judges and an immigration judge in San Francisco. “It did appear to be a one-sided argument made by a prosecutor.”
Jeffrey Chase, a former immigration judge and now an immigration attorney, said the comments overlooked the fact that asylum laws were designed to be flexible.
“We possess brains and hearts, not just one or the other,” he said. It is sympathy, Chase said, that often spurs legal theories that advance the law in asylum law, civil rights, and criminal law.
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.
Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.
Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, which represents the nation’s 350 immigration judges, said Sessions’ speech was notable for its lack of any mention of fairness or due process. “We cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role,” said Tabaddor.
The union has long called for its separation from the Department of Justice in order to be truly independent of political decision-making.
“Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” Sessions said in a speech to 44 newly hired judges who were being trained in Falls Church, Virginia.
He ended his speech by telling the incoming judges that the American people had spoken in laws and “in our elections.”
“They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them,” Sessions said.
From the beginning of October through the end of June, immigration judges had granted around 22% of asylum cases and denied around 41% of cases. The rest of the cases were closed. The rate is similar to previous fiscal years. Sessions’ decision to limit the types of cases in which asylum should be granted was made in mid-June.
Attorney General Jeff Sessions said Monday that he plans to increase the number of immigration judges in the U.S. by 50 percent by the end of Fiscal Year 2018 – part of the administration’s effort to take on a case backlog that has ballooned under the Trump administration’s zero-tolerance policy.
The number of immigration cases on hold in the U.S. has risen 38 percent since Trump took office, with 746,049 pending immigration cases as of July 31, up from 542,411 at the end of January 2017, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.
Sessions asserted his authority on Monday during remarks welcoming 44 newly hired immigration judges – the largest class in U.S. history – noting that they must operate under his supervision and perform the duties that he prescribes.
As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,’ he said. ‘I do not apologize for expecting you to perform, at a high level, efficiently and effectively.’
The attorney general said the system for seeking asylum in the U.S. has been ‘abused for years’ and while the judges must respect immigrants’ rights, they should also ‘reject unjustified and sometimes blatantly fake claims.’
Sessions also had harsh words for the attorneys who represent immigrants, describing them as ‘water seeping through an earthen dam,’ who attempt to ‘get around’ immigration laws.
The message follows a series of policy changes that have put increasing pressure on immigration judges to close cases quickly while taking away their authority to prioritize cases based on their own judgment.
‘We’re clearly moving toward a point where there isn’t going to be judicial independence in the immigration courts anymore,’ former immigration Judge Jeffrey S. Chase told DailyMail.com.
U.S. Attorney General Jeff Sessions delivers remarks to the incoming class of immigration judges in Falls Church, Virginia
For example, the Justice Department earlier this year announced a quota system requiring judges to clear at least 700 cases annually in order to be rated as ‘satisfactory’ on their performance evaluations.
Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.
Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases, a process that allowed a judge to indefinitely close low-priority cases to make room on the docket for more serious offenses – such as those involving violent criminals and gang members.
From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions. Now experts say those cases will be added back to the dockets, further compounding the backlog.
In addition, Sessions issued a legal opinion earlier this year designed to make it impossible for victims of domestic violence and gangs to seek asylum in the U.S. – which some critics say will limit judicial independence.
Legal experts said Monday that Session’s speech was designed to assert his authority over the judges and impress upon them the importance of issuing rulings consistent with his own philosophy.
‘That was an enforcement speech,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘The whole implication that somehow (people seeking asylum) are bending the law and that there are attorneys trying to go through loopholes is the opposite of the truth … The losers in these asylum cases aren’t simply migrants trying to game the system. They are people facing real dangers when they go home.’
Sessions did not shy away from calling on the new judges to rise to the challenges before them.
‘Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts,’ Sessions said in his prepared remarks. ‘No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.’
Sessions has said that he has introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.
Immigration judges are appointed by the U.S. attorney general. The new additions bring the total number of immigration judges in the U.S. to 397.
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There are lots of helpful charts and graphs accompanying Val’s excellent article. Go to the link above to view them, along with the complete article.
Sessions’s claim that we have a “generous welfare system and open borders” is total BS. We don’t have open borders, and never have had. And SEssions and his GOP cronies have worked hard to make our welfare system not very generous at all, particularly when it comes to foreign nationals. It’s a total insult, as well as an arrogant rewriting of history to imply that the Nixon, Ford, Reagan, Bush I, Clinton, Bush II, and Obama Administrations didn’t care about immigration or border enforcement. All of them took their best shot at it, under the circmstances. I should know, as I served in all of those Administrations except for Bush I. Indeed, if anything, for better or worse, and many would say the latter, enforcement during the Obama era was probably more effective than it has been under the “Trump/Sessions gonzo approach.”
Individuals fleeing from the Northern Triangle aren’t coming for welfare. They are coming to save their lives, something that Sessions’s mindless restrictionist philosophy apparently makes it impossible for him to acknowledge. Moreover, individuals have a statutory right to apply for asylum, regardless of the means of entry. Insuring that asylum, withholding of removal, and protection under the Convention Against Torture are propoerly extended to inbdividuals seeking refuge in the US is just as much a part of “enforcing the rule of law” as are removals. Indeed, the consequencers of wrongfully removing an individual entitled to protection are potentially catestropohic.
OK. Now let’s get beyond Sessions’s White Nationalist screed and get some truth about:
The ethical standards for Immigration Judges;
The real intent of the Refugee Act of 19809; and
What being a fair and impartial immigration judge is really about.
Sessions’s Statement Favoring A Party To Immigration Court Proceedings And Showing Disrespect For The Opposing Party & Their Representatives Violates The EOIR Ethical Code By Showing An “Appearance of Bias.”
Let’s remember that under the strange rules governing EOIR and the Immigration Courts within the USDOJ, Attorney General Jeff Sessions can and has taken on the role as a judicial adjudicator in an individual cases, changing results and setting precedent for the BIA and the Immigration Judges.
So, what does the EOIR Code of Judicial Ethics say about judicial conduct?
V. Impartiality (5 C.F.R. § 2635.101(b)(8))
An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of aparticular case. An Immigration Judge should encourage and facilitate pro bono representation. An Immigration Judge may grant procedural priorities to lawyers providing pro bono legal services in accordance with Operating Procedures and Policies Memorandum (OPPM) 08-01.
VI. Appearance of Impropriety (5 C.F.R. § 2635.101(b)(14))
An Immigration Judge shall endeavor to avoid any actions that, in thejudgment of a reasonable person with knowledge of the relevant facts, wouldcreate the appearance that he or she is violating the law or applicable ethical standards.
. . . .
IX. Acting with judicial Temperament and Professionalism
An Immigration Judge should be patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers and others with whom the Immigration Judge deals in his or her official capacity, and should not, in the performance of official duties, by words or conduct, manifest improper bias or prejudice.
Note: An Immigration Judge should be alert to avoid behavior, including inappropriate demeanor, which may be perceived as biased. The test forappearance of impropriety is whether the conduct would create in the mind of a reasonable person with knowledge of the relevant facts the belief that the Immigration Judge’s ability to carry out his or her responsibilities with integrity, impartiality, and competence is impaired.
Note: An Immigration Judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the immigration process into disrepute. Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics. Moreover, an Immigration Judge must avoid conduct that may reasonably be perceived as prejudiced or biased. Immigration Judges are not precluded from making legitimate reference to any of the above listed factors, or similar factors, when they are relevant to an issue in a proceeding.
Note: An Immigration Judge has the authority to regulate the course ofthe hearing. See 8 C.F.R. §§ 1240.1(c), 1240.9. Nothing herein prohibits theJudge from doing so. It is recognized that at times an Immigration Judgemust be firm and decisive to maintain courtroom control.
Wow. Sure sounds to me like Sessions is in clear violation of each of these!
Let’s get down to “brass tacks” here. Imagine that you are a represented asylum applicant from the Northern Triangle with an upcoming hearing. The morning of your hearing, you read the statement that Jeff Sessions made to the new Immigration Judges.
That afternoon, when you appear at the hearing you find that none other than Jeff Sessions is yo\ur U.S. Immigration Judge. So, do you think that you and your attorney are going to get a “fair and impartial” hearing, including a possible favorable exercise of discretion” on your asylum application, as our Constitution and laws require? Of course not!
But remember, all asylum applicants are appearing before “judges” who are actually employees of Jeff Sessions. Each judge knows that he or she owes career longevity to pleasing Sessions and his minions. Each judge also knows that at any time Sessions can arbitrarily reach down into the system, without explanation or notice, and “certify” any case or decision to himself.
Clearly, after having publicly taken a pro-DHS, pro-enforcement, anti-asylum applicant, anti-private attorney position, Sessions should not ethically have any role whatsoever in the outcome of cases in the Immigration Court System. But, clearly, he does have such a role. A big one!
If any sitting Immigration Judge conducted himself or herself the way Sessions just did, they would be suspended immediately. How does Sessions get away with disregarding judicial ethics in his own system?
The Refugee Act of 1980 Implements Our International Treaty Obligations Under the UN Convention & Protocol Relating To The Status Of Refugees and Is Actually About “Protecting” Those In Danger, Not Finding Ways Of “Rejecting” Their Claims.
Let’s hear from a former legislator who played a key role in developing and enacting the Refugee Act or 1980, former Representative Elizabeth Holtzman (D-NY) who at that time was the Chair of the House Immigration Subcommittee. This is from the letter that Holtzman recently wrote to Secretary Nielsen resigning from the DHS Detention Advisory Committee because of its perversion of the law, particularly the illegal family separation policy engineered by Sessions.
What is so astonishing to me is how much this country has changed since 1980, when I was privileged as chair of the House Immigration Subcommittee to co-author with Senator Ted Kennedy the Refugee Act of 1980. The Act — which was adopted without serious controversy — created a framework for the regular admission of refugees to the U.S. The immediate stimulus for the bill was the huge exodus of boat people leaving Vietnam. Though the memory of the Holocaust played a role, too, particularly the knowledge that the U.S. could have rescued so many people from the hands of the Nazis but did not. The Refugee Act marked our commitment as a nation to welcoming persons fleeing persecution anywhere.
In those days, the U.S. also showed world leadership on refugee resettlement. For example, America understood that it bore a special responsibility for the refugees fleeing Vietnam because of its long involvement in the Vietnam War. Obviously, we could not absorb all the refugees, but our government worked hard to get resettlement solutions for all. First, it persuaded the countries neighboring Vietnam to which people fled in small boats not to push those refugees back out to sea, where they would confront pirates, drowning and other terrible dangers. (I know because I participated in speaking to those countries.) Then, the U.S. organized a world conference in Geneva, where countries agreed to accept specific numbers of refugees. The U.S. was able to induce other countries to act because it took the largest share. Our country’s leadership turned the boat people crisis into one of the most successful refugee resettlement programs ever.
Now, in response to the influx of (mostly) women and their children fleeing horrific violence in Central America, the U.S. government can think only of building a wall and unlawfully separating children from their parents — something I call child kidnapping, plain and simple — as a deterrent to keep others from coming to the US. How far we have we fallen.
And how easy it would be to do the right thing. The U.S. needs to start with recognizing that it once again has a special responsibility for a dire situation, this time in the Northern Triangle. We overthrew the democratically elected government in Guatemala, which was replaced by one right-wing government after another, including one that committed genocide against the indigenous population. In Honduras and El Salvador, we similarly propped up right-wing governments that did nothing for their people, leaving them without effective governance in place. The fact that gangs have been able to terrorize the population with impunity is a result.
More must be done as well. We should reinstate the Central American Minors Refugee/Parole Program, established under President Obama and cancelled by the Trump Administration, whereby people could apply in their home countries for admission as refugees to the U.S. without facing the perils of the overland trip. Second, we should try to get Canada and other countries in South America to accept refugees from the Northern Triangle countries, reducing the burden on us. To do this, we would have to agree to take a substantial number of refugees from the Northern Triangle countries as well. And then we should work to improve the governance in these countries, perhaps by involving the United Nations and nearby countries, such as Costa Rica.
Unfortunately, the chance of any such enlightened response toward refugees from the Northern Triangle seems remote. These countries probably fall into Trump’s stated “shithole” category. Plainly, the hostile attitude toward the refugees persists. For example, 463 parents may have been deported without their children. Apparently DHS Secretary Kirstjen Nielsen feels no responsibility for reuniting those with their parents, instead making the flimsy excuse that the parents wanted to leave them behind. While possibly true in a small number of instances, given the fact that many of the parents do not speak English, or even Spanish, but their indigenous language, it is more likely that a significant number of the parents had no idea of what was happening or how to get their children back. They may even have been coerced into leaving. In any case, Nielsen has a very poor record of truth-telling. On June 17, she insisted that “We do not have a policy of separating families at the border. Period.”
Most Americans, fortunately, have found the separation policy abhorrent. Those of us who do, need to press the Administration to find a more humane and more comprehensive solution, like our country has done in the past. But if the Administration continues the enforced separation policy, I hope that the courts will enforce their decisions, which have required reunification, by holding the Secretary and others in contempt if necessary. Congress should be called on to act by holding hearings and adopting censure resolutions. None of us can sit idly by when our government stoops to such racist, malign behavior.
Yes, with responsible leadership, it would be relatively easy to do the right thing here. But, it’s not going to happen with the “wrong people” like Donald Trump, Stephen Miller, Jeff Sessions, and Kristjen Nielsen in charge.
The real intent of the Refugee Act of 1980 was to give America the tools to take a leadership role in protecting individuals, particularly those flowing from situations we helped cause like the mess in the Northern Triangle. I’m sure that most of those involved in the bipartisan effort would be shocked by the overtly racist, restrictionist views being pawned off by Sessions as “following the law.” “I call BS” on Session’s perversion of protection laws.
Undoubtedly, cases like Matter of A-R-C-G-, incorrectly overruled by Sessions, actually substantially understated the case for protecting domestic violence victims. There is little doubt in my mind that under a proper interpretation “women in El Salvador” (or Guatemala or Honduras, or many other countries) satisfy the stated criteria for a “particular social group.”
Being a “woman in El Salvador” clearly is :
Immutable or fundamental to identity;
Particularized; and
Socially distinct.
Moreover, there is no legitimate doubt that the status of being a “woman in El Salvador” is often “at least one central reason” for the persecution. Nor is there any doubt that the Governments in the Northern Triangle are unwilling and unable to offer a reasonable level of protection to women abused because of class membership, Sessions’s largely fictional account of country conditions notwithstanding.
At some point, whether or not in my lifetime, some integrity will be re-injected into the legal definition by recognizing the obvious. It might come from Congress, a more qualified Executive, or the Courts. But, it will eventually come. The lack of recognition for women refugees, who perhaps make up a majority of the world’s refugees, is a symptom of the “old white guys” like Sessions who have controlled the system. But, that’s also likely to change in the future.
My esteemed colleague, retired U.S. Immigraton Judge Jeffrey S. Chase said it best:
“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”
The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.
Let’s see what some real judges who have had a role in the actually fairly adjudicating asylum claims have to say about the qualities of judging.
Here’s one of my favorite quotes from the late Seventh Circuit Judge Terence T. Evans in Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring) that sums up the essence of being a good Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.
Or, check out this heartfelt statement from my former colleague Judge Thomas Snow, one of “Arlington’s Finest,” (who also, not incidentally, had served as the Acting Chief Immigration Judge and Acting Director of EOIR, as well as being a long-time Senior Executive in the USDOJ) in USA Today:
Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.
We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.
We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions
And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.
Here’s a “pithier” one from my friend and colleague Judge Dana Leigh Marks, former President of the National Association of Immigration Judges (who also was the “winning attorney” representing the plaintiff in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)) — I was on the “losing” INS side that day):
[I]mmigration judges often feel asylum hearings are “like holding death penalty cases in traffic court.”
Finally, here’s my take on being an Immigration Judge after 45 years in the field, including stints at the BIA, the “Legacy INS,” private practice, and academics:
From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is alwayson public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.
Compare Sessions’s one-sided, biased outlook with the statements of those of us who have “walked the walk and talked the talk” — who have had to listen to the horrible stories, judge credibility, look at whether protection can legally be extended, and, on some occasions, look folks in the eye and tell them we have no choice but to send them back into situations where they clearly face death or danger.
Sympathetic understanding of refugees and the protection purposes of refugee, asylum, and CAT laws are absolutely essential to fair adjudication of asylum and other claims for relief under the Immigration Laws. And, clearly, under the UNHCR guidance, if one is going to err, it must be on the side of protection rather than rejection.
That’s why Jeff Sessions, a cruel, biased, and ignorant individual, lacking human understanding, sympathy, a sense of fundamental fairness, a commitment to Due Process, and genuine knowledge of the history and purposes of asylum laws has no business whatsoever being involved in immigration adjudication, let alone “heading” what is supposed to be a fair and impartial court system dedicated to “guaranteeing fairness and Due Process for all.”
Senator Elizabeth Warren tried to tell her colleagues and the rest of America the truth about Jeff Sessions and the horrible mistake they were making in putting such a famously unqualified man in charge of our Department of Justice. But, they wouldn’t listen. Now, refugees, families, and children, among his many victims, are paying the price.
Sessions closes with a final lie: that the American people spoke in the election in favor his White Nationalist policies. Whether Sessions acknowledges it or not, Donald Trump is a minority President. Millions more voted for Hillary Clinton and other candidates than they did for Trump.
Almost every legitimate poll shows that most Americans favor a more moderate immigration policy, one that admits refugees, promotes an orderly but generous legal immigration system, takes care of Dreamers, and controls the borders in a humane fashion as opposed to the extreme xenophobic restrictionist measures pimped by Sessions, Trump, Steven Miller, and the GOP far right. In particular, the separation of children, Sessions’s unlawful “brainchild,” has been immensely (and rightfully) unpopular.
Jeff Sessions has never spoken for the majority of Americans on immigration or almost anything else. Don’t let him get away with his noxious plans to destroy our justice system! Whether you are an Immigration Judge, a Government employee, or a private citizen, we all have an obligation to stand up to his disingenuous bullying and intentionally false, xenophobic, racially-motivated, unethical, scofflaw narrative.
