⚖️🗽🇺🇸👍🏼👩🏻‍⚖️ JUSTICE FOR KIDS IN COURT — ROUND TABLE ⚔️🛡 “WARRIOR QUEEN” 👸🏻 HON. SARAH BURR SPEAKS OUT FOR “FAIR DAY IN COURT FOR KIDS ACT OF 2021!” — “We cannot in good conscience allow any unaccompanied children to appear in immigration court alone.”

Hon. Sarah Burt — Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website

https://thehill.com/opinion/judiciary/578076-why-are-children-representing-themselves-in-immigration-court

From The Hill:

As a retired immigration judge, I have watched with concern reports of the surge of unaccompanied immigrant children crossing the border into the United States. There are many reasons for concern—their housing, their health, their safety. To me, there is an additional, very real, and often overlooked question looming on the horizon: What will happen when these children, even toddlers and babies, appear alone in immigration court?

Yes, alone. While a person in immigration proceedings is entitled to be represented by a lawyer if they can afford it, there is no constitutional or even statutory right to appointed counsel in immigration proceedings. That means those who cannot afford a lawyer must appear in court alone, including children.

While I am pleased to see the Biden administration plans to provide government-funded legal representation for certain immigrant children in eight U.S. cities, this new initiative is still a far cry from the universal representation needed to support children in removal proceedings.

Imagine, if you can, a child — 2 years old, 10 years old or 17 years old — appearing before an immigration judge alone. How does a child, already intimidated and confused by the courtroom setting, understand the nature of the court proceedings and the charges against them? How can a child understand the complexities of immigration law, their burden of proof, and possible defenses against deportation? The short answer is they cannot.

. . . .

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Read the rest of the op-ed at the above link.

The “Fair Day For Kids in Court Act of 2021” is endorsed by the “Round Table” ⚔️🛡 among many other groups in the NDPA!

Here’s a summary (courtesy of Hon. “Sir Jeffrey” S. Chase):

Senator Mazie Hirono (of [Round Table “Fighting Knightess” Judge] Dayna Beamer’s home state of Hawaii) plans to introduce the attached bill on Thursday, that would provide counsel for unaccompanied children in Immigration Court by:

Clarifying the authority of the federal government to provide or appoint counsel to noncitizens in immigration proceedings;
Requiring the appointment or provision of legal counsel to all unaccompanied children in proceedings unless they obtained counsel independently;
Mandating access to counsel for all noncitizens in CBP and ICE facilities;
Requiring that, if the government fails to provide counsel to an unaccompanied child and orders that child removed, the filing of a motion to reopen proceedings will stay removal; and
Requiring government reporting on the provision of counsel to unaccompanied children.

Here’s the text of the bill, which will be introduced by Sen. Hirono later this week:

Fair Day Text FINAL

Thanks Sarah and Jeffrey! So pleased to be part of the “support group” for this long-overdue and badly needed legislation that would do what to date Congress, the Federal Courts, and DOJ have failed to do: Enforce the Due Process Clause of the Fifth Amendment in Immigration Court!

And, of course, we should never forget the ongoing, daily work performed by NDPA Superhero 🦸🏻‍♂️ Wendy Young and Kids in Need of Defense (“KIND”) in ending the disgraceful blot on American justice of unrepresented kids in Immigration Court:

Dear Paul,

I met Maria* in immigration court. The judge sat in his robes behind the bench when he called her deportation case.

A trial attorney from the Department of Homeland Security sat at the front, prepared to argue for Maria’s removal from the U.S.. Maria was by herself without a lawyer by her side.

She was five years old.

She approached the bench, wearing her nicest clothes, clutching a doll. She sat behind the respondent’s desk, barely able to see over the microphone. The judge asked her a number of questions about why she was in the US and about her life here, none of which she could answer. Her eyes grew bigger and bigger as she sat silently, until he finally dismissed her and told her to come back at a later date. As she left the court, he asked her what the name of her doll was. In Spanish, she replied, “Baby Baby Doll.” That was the only question she could answer.

That moment haunts me. I continually wonder about the insanity of asking a five year old to stand alone and defend herself against deportation in a federal courtroom. It should never happen. Which is exactly why KIND has mobilized and trained a powerful group of pro bono attorneys to represent and work with children just like Maria who deserve legal representation in a U.S. immigration court.

This October, KIND is honoring the pro bono attorneys who have helped more than 27,000 children referred to KIND receive legal representation that often means the difference between relief and deportation and, by extension, a child’s safety or danger.

Will you make a tax-deductible donation now to support the children we work with in and out of the courtroom?

Here’s the direct impact your gift today can have for children like Maria:

$75 will support a child’s success and provide a backpack and basic school supplies for a child beginning school in the U.S.

$100 will give nourishment, and provide groceries and essentials to help keep children fed and healthy while they await the outcome of their legal case.

$250 will give a child a voice by helping pay for an interpreter so an indigenous child can tell their story in court.

$500 will allow us to make a life-saving connection and train attorney’s across the country to evaluate and work with refugee children in need of representation and critical social services.

$1500 will help us connect kids to mental health resources, including psychological evaluation and other mental health services for a child seeking asylum in the U.S..

$5000 will provide hope and safety to a vulnerable child by ensuring we have the resources we need to offer comprehensive legal representation and social service needs for however long it takes to win their case.

Paul, these are just a few ways we’ll put your gift to work, but know that your donation in ANY amount is critical to the number of children we can reach, and represent, through the amazing efforts of our pro bono attorney network.

These kids are scared, they are traumatized. They are intimidated. And without the services provided by organizations like KIND, they are all alone.

But that’s why we’re here – and that’s why I hope you’ll consider making a gift today to support this life-changing work. Your donation today will have a direct impact on the lives of refugee children who deserve to have someone in their court.

Thank you so much for your generosity today, and always.

🇺🇸Due Process Forever!

PWS

10-26-21

⚖️🗽⚔️🛡 — ROUND TABLE COMMENTS ON PROPOSED ASYLUM REGS RIP LIMITATIONS ON IJ REVIEW, UNFAIR RESTRICTIONS ON DE NOVO HEARINGS, AMONG OTHER THINGS!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

KEY EXCERPT:

III.E. Limitation on Immigration Judge Review

We strongly oppose the proposal to severely restrict the right of those denied asylum by USCIS to a full de novo merits hearing before an Immigration Judge.Given these significant increases in efficiency mentioned above, the proposed restrictions are unnecessary to reduce the backlog.Regardless, even if EOIR and DHS disagree with this assessment, regulations may neither contradict the Congressional intent of statutes they seek to interpret, nor deny due process in the name of efficiency.Yet the proposed rule would violate both of these principles in the changes they propose to the Immigration Court procedures.

EOIR and DHS claim that the statutory language of 8 U.S.C. § 1225(b)(1), requiring “further consideration of the application for asylum” to those found to have a credible fear of persecution, is ambiguous.In fact, the legislative history of that statute demonstrates that Congress intended for all of those found to possess a credible fear of persecution to be afforded full Immigration Court hearings. At a 1996 hearing on the bill, Senator Alan Simpson (R-WY) assured that “[a] specially trained asylum officer will hear his or her case, and if the [noncitizen] is found to have a ‘credible fear of persecution,’ he or she will be provided a full—full—asylum hearing.”EOIR and DHS are asked to note Sen. Simpson’s repetition of the word “full.”

This same sentiment was echoed by Senator Patrick Leahy (D-VT), who stated that those who establish credible fear “get a full hearing without any question,” and Rep. Lamar Smith (R-TX), who emphasized that those with a credible fear of persecution “can go through the normal process of establishing their claim.”The regulatory proposal is thus improperly violative of Congressional intent.

As to due process, in a 2013 decision, Oshodi v. Holder, the U.S. Court of Appeals for the Ninth Circuit held that limiting an asylum seeker’s testimony to events that were not duplicative of the written application, on the belief that the written record would suffice for deciding veracity, was a violation of the asylum seeker’s due process rights. Yet the proposed regulations seek to codify what according to Oshodi the Constitution specifically forbids.

The court in Oshodi stated that “the importance of live testimony to a credibility determination is well-recognized and longstanding.”Our own experience supports this conclusion.Immigration Judges have long decided cases that were first heard by Asylum Officers. The outcomes of those cases offer strong reason to question the logic of what is now being proposed. EOIR’s Statistical Yearbook for 2016 (the last year such stats were made available) shows that 83% of cases referred by asylum officers were granted asylum that year by Immigration Judges conducting de novo hearings.

Having heard as Immigration Judges many cases referred from the Asylum Office, we believe that the right to a full de novo court hearing, in which attorneys were free to offer documents and briefs, and to present testimony as they saw fit, was the reason for the large disparity in outcomes. The current system itself recognizes this; it is why asylum officers, who need not be attorneys, are limited to granting clearly meritorious cases, and must refer the rest to courts better equipped to delve into the intricacies of a highly complex field of law.

We can vouch from our experience on the bench to the importance of hearing live testimony in reaching the correct decision.We decided many cases in which in-person demeanor observations were instrumental to our credibility findings.Credibility is often a threshold issue in applications for asylum and related relief.In 2005, Congress specifically amended the criteria Immigration Judges may rely on in deciding credibility.While those criteria include their observations of the “demeanor, candor, or responsiveness of the applicant or witness” (observations which cannot be made unless testimony is witnessed), there is no provision in the statute for reaching credibility findings by reviewing an asylum officer’s opinion on the topic.The court in Oshodi cited language in a House conference report on the REAL ID Act of 2005, containing the following quote: “An immigration judge alone is in a position to observe an alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He [or she] is, by virtue of his [or her] acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.”

We can also state from experience that critical “Eureka” moments arise unexpectedly in the course of hearing testimony. A question from counsel, or sometimes from the judge, will elicit an answer that unexpectedly gives rise to a new line of questioning, or even a legal theory of the case. An example is found in last year’s Second Circuit decision in Hernandez-Chacon v. Barr. In that case, the Second Circuit found that a woman’s act of resisting rape by an MS-13 gang member could constitute a political opinion based on one sentence not contained in the written application, and uttered for the first time at the immigration court hearing: when asked why she resisted, the petitioner responded: “Because I had every right to.” From that single sentence, the Second Circuit found that the resistance transcended mere self-protection and took on a political dimension.

Under the proposed rules, the attorney would likely never have been able to ask the question that elicited the critical answer. At asylum office interviews, attorneys are relegated to sitting in the corner and quietly taking notes.Some of us teach trial advocacy skills to immigration attorneys, where we emphasize the importance of attorneys formulating a theory of their case, and then presenting documentary evidence and testimony in a manner best designed to support that theory.During our time on the bench, we looked forward to hearing well-presented claims from competent counsel; good attorneys increased efficiency, and usually led us to reach better decisions.And as former asylum officers have indicated that the concept of imputed political opinion was not available to them as a basis for granting asylum, questioning in support of such theory will not be covered in an asylum office interview.

But under the proposed procedures, attorneys are largely relegated to passive observer status.At asylum office interviews, attorneys are only provided a brief opportunity to speak after the interview has been completed.And in cases referred to the Immigration Court, the new restrictions may prevent attorneys from presenting any testimony at all.

As to the criteria that must be met in order to supplement the record before the Immigration Judge, whether evidence is duplicative or necessary is a fuzzy concept. For example, the law accords greater deference to government sources, such as State Department reports, and at times, Immigration Judges may find other evidence deserving of “little evidentiary weight.” Thus, sometimes duplicative evidence is necessary to persuade a judge who may otherwise not be sufficiently swayed by a single report. But that need might not become apparent until the hearing is concluded, whereas decisions to exclude additional testimony and documentary evidence are made much earlier, at the outset of the proceeding.

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Read our full commentary,, including some parts of the proposal we endorse, here:

Comments NPRM Credible Fear procedures 10-19-21

Many, many, many thanks to “Sir Jeffrey” Chase for collecting the “sentiments of the group” and preparing these cogent comments under extreme pressure!

🇺🇸Due Process Forever!

PWS

10-20-21

HON. JEFFREY CHASE: BIDEN ADMINISTRATION PROPOSES LESS DUE PROCESS THAN TRAFFIC COURT FOR LIFE OR DEATH ASYLUM CASES! 🤮👎

https://www.jeffreyschase.com/blog/2021/10/6/the-need-for-full-fledged-asylum-hearings

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

The Need For Full-Fledged Asylum Hearings

It has been said that Immigration Judges hear death penalty cases under traffic court conditions.1 The death penalty cases are of course asylum claims, which, if wrongly denied, can result in the applicant being returned to their death.

The Biden Administration recently published proposed regulations seeking to revise the system for hearing the asylum claims of those arriving at the southern border. Any positives envisioned in the proposal are greatly outweighed by the damage the rules will do to the right to immigration court review. If enacted as drafted, traffic court conditions would be far preferable to the meager access to review that would remain for many asylum seekers.

To provide some context: presently, arriving asylum seekers who after screening by USCIS asylum officers are found to have established a sufficient risk of harm proceed directly to Immigration Court, where they have a full hearing on their claim before an Immigration Judge. In those proceedings, asylum seekers may freely submit documents, call witnesses, and elicit testimony.

This was as Congress intended it. In creating the present credible fear screening system in 1996, Congress made clear that those passing the screening, in the words of then Senator Alan Simpson (R-WY), “will be provided a full – full – asylum hearing.”2 This sentiment was echoed by Senator Patrick Leahy (D-VT), who stated that those who establish credible fear “get a full hearing without any question,”3 and Rep. Lamar Smith (R-TX), who emphasized that those with a credible fear of persecution “can go through the normal process of establishing their claim.”4

Under the proposal, those who pass the preliminary screening (known as a credible fear interview) will instead have their full asylum claim heard by an asylum officer. This could be a positive development if the rules continued to assure the right to a full court proceeding to those not granted at this initial stage.

Unfortunately, the proposed rules would reduce Immigration Judges to reviewers of transcripts of the asylum office interviews. Additional evidence (including testimony) that was not provided at the Asylum Office will only be allowed if deemed to be “non-duplicative” and necessary to complete the record. If an Immigration Judge determines that the applicant (who may not have been represented by a lawyer) provided sufficient evidence to the asylum officer, the claim may be decided entirely on the record from that initial non-court interview.

It bears noting that the Immigration Judges making these determinations remain subject to the completion quotas imposed under the prior administration. While Immigration Judges must be guided by the requirements of due process and fairness in making such decisions, it would be remiss not to point out that for newly hired judges still on probation, the ability to exclude new evidence and essentially rubber stamp the asylum officer’s decision offers the prospect of a very quick completion for quota purposes. Judges should not be put in the position of choosing between the dictates of justice and their own job security.

As the drafters of the proposed rules are well aware, Immigration Judges have long decided cases that were first heard by Asylum Officers. The outcomes of those cases offer strong reason to question the logic of what is now being proposed. EOIR’s Statistical Yearbook for 2016 (the last year such stats were made available) shows that 83% of cases referred by asylum officers were granted asylum that year by Immigration Judges conducting de novo hearings.5

Having heard referred cases as an Immigration Judge, as well as having represented asylum applicants at the Asylum Office, I have no doubt that the right to a full de novo court hearing, in which attorneys are free to offer documents, briefs, and present testimony as they see fit, is the reason for that large disparity. The current system itself recognizes this; it is why Asylum Officers are limited to granting clearly meritorious cases, and must refer the rest to courts better equipped to delve into the intricacies of a highly complex field of law. Immigration Judges also enjoy greater decisional independence than asylum officers, who require supervisory approval of their decisions,6 are more susceptible to political pressure, and are more limited in the legal theories they may rely on.

As to the criteria for supplementing the record, whether evidence is duplicative or necessary is a fuzzy concept. For example, the law accords greater deference to government sources, such as State Department reports, and at times, Immigration Judges may find other evidence deserving of “little evidentiary weight.” Thus, sometimes duplicative evidence is necessary to persuade a judge who may otherwise not be sufficiently swayed by a single report. But that need might not become apparent until the hearing is concluded, whereas decisions to exclude additional testimony and documentary evidence are made much earlier, at the outset of the proceeding.

There are constitutional considerations as well. In a 2013 decision, Oshodi v. Holder, the U.S. Court of Appeals for the Ninth Circuit held that limiting an asylum seeker’s testimony to events that were not duplicative of the written application, on the belief that the written record would suffice for deciding veracity, was a violation of the asylum seeker’s due process rights. Yet the proposed regulations seek to codify what according to Oshodi the Constitution specifically forbids. The court in Oshodi stated that “the importance of live testimony to a credibility determination is well-recognized and longstanding.” Having heard live testimony as a judge, I can vouch for this. I decided many cases in which an in person demeanor observation was instrumental to my credibility finding.

I will also state from experience that critical “Eureka” moments arise unexpectedly in the course of hearing testimony. A question from counsel, or sometimes from the judge, will elicit an answer that unexpectedly gives rise to a new line of questioning, or even a legal theory of the case. An example is found in last year’s Second Circuit decision in Hernandez-Chacon v. Barr. In that case, the Second Circuit found that a woman’s act of resisting rape by an MS-13 gang member could constitute a political opinion based on one sentence not contained in the written application, and uttered for the first time at the immigration court hearing: when asked why she resisted, the petitioner responded: “Because I had every right to.” From that single sentence, the Second Circuit found that the resistance transcended mere self-protection and took on a political dimension. Under the proposed rules, the attorney would likely never have been able to ask the question that elicited the critical answer. At asylum office interviews, attorneys are relegated to sitting in the corner and quietly taking notes. Furthermore, I have been told by former asylum officers that the concept of imputed political opinion was not available to them as a basis for granting asylum, a fact that pretty much guarantees it will not be covered in an asylum office interview.

The proposed limitations on Immigration Judge review are not necessary to increase efficiency. Whatever cases asylum officers grant pursuant to their new up front review will significantly reduce the Immigration Court case load. And even an imperfect transcript from those interviews in claims referred to the court will provide attorneys for both sides the opportunity for advance conferencing to narrow down the issues in dispute, a practice which significantly reduces hearing times and which should be greatly encouraged.

According to the website of the New York State Department of Motor Vehicles, at a traffic court hearing, “you or your attorney may ask the officer questions. You may testify, bring witnesses or present evidence on your behalf.”7 The Biden Administration cannot provide less rights than these to those facing the life and death consequences inherent in asylum claims.

Those interested may submit their comments on the new regs by October 19.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Notes:

See, e.g., Dana Leigh Marks, “Immigration Judge: Death Penalty Cases in a Traffic Court Setting,” CNN, June 26, 2014, https://www.cnn.com/2014/06/26/opinion/immigration-judge-broken-system/index.html

104 Cong. Rec. S4457, S4461, https://www.congress.gov/104/crec/1996/05/01/CREC-1996-05-01-pt1-PgS4457.pdf.

Id. at 4492.

104 Cong. Rec. S4592, S4608, https://www.congress.gov/104/crec/1996/05/02/CREC-1996-05-02-pt1-PgS4592.pdf.

See EOIR FY 2016 Statistics Yearbook, https://www.justice.gov/eoir/page/file/fysb16/download, at p. K-3. Figure 17 is a chart showing the Immigration Court grant rate of affirmative cases referred by the USCIS Asylum Offices. The chart shows a grant rate of 72% in FY 2012, steadily increasing each year to 83% in FY 2016.

Per the USCIS website: A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review. https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process. Immigration Judges require no supervisory review before rendering their decisions.

OCTOBER 6, 2021

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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

REPUBLISHED BY PERMISSION

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Thanks, “Sir Jeffrey!”

Like many of our colleagues, I granted the majority of “referred” asylum cases, most without ICE appeal. It wasn’t that the Asylum Office did a bad job. The records were often poor or incomplete (as too many individuals attempted to represent themselves at the AO). With the additional information and elucidation from counsel provided at a full hearing, the merits of the case came into focus.

There were a few cases where the parties stipulated to the record before the AO, and just asked me for a legal ruling. This procedure would be available in appropriate cases, without any regulations changes, and should be encouraged for the parties, particularly ICE. Obviously, the key is that both parties must agree that the record before the AO was adequate.

Additionally, at the time, the AO could not grant withholding or CAT, so an inordinate number of one-year filling denial cases were in the referrals. As Jeffrey suggests, this could be fixed without eliminating the right to a full hearing upon referral.

Also, as I have said many times, instituting a new system that reduces the right to a full hearing, without first making badly needed major structural, personnel, training, and leadership changes at both the AO and EOIR is simply insane and another serious breach of trust by the Biden Administration!

🇺🇸Due Process Forever!

PWS

10-07-21

⚖️GARLAND’S BIA IMMEDIATELY “STUFFED” BY AMERICA’S MOST CONSERVATIVE CIRCUIT ON BOGUS ANTI-IMMIGRANT PRECEDENT! — Last Thursday, The BIA “Dissed” The Supremes Again In Arambula-Bravo — Yesterday, The Fifth Circuit Said “Not So Fast” In Rodriguez v. Garland! — Piecemeal Notice Cannot Be Basis For In Absentia Order!

Kangaroos — “Supremes? What Supremes? We work for Judge Garland @ DOJ, and he’s very, very tolerant of our anti-immigrant, pro-DHS ‘culture,’ and institutionalized poor decision-making over here at ‘his EOIR!’ Our jobs are safe, and that’s all that matters! To hell with ‘the others!’ ‘Jeffie Gonzo’ and ‘Billy the Bigot’ told us to treat migrants like the ‘trespassers’ and ‘scum of the earth’ they really are! It’s not like OUR families were ever migrants!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Rodriguez v.Garland, 5th Cir., 09-27-21, published

RODRIGUEZ V GARLAND, 5TH ON NIZ

PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.

OPINION: Judge Patrick Higginbotham

KEY QUOTE:

The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23

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

Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.

After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!

Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!

“Courtside” saw this coming a mile away! https://immigrationcourtside.com/2021/09/25/bia-going-for-trifecta-already-rebuked-twice-by-supremes-for-ignoring-statutory-definition-of-notice-to-appear-bia-chooses-to-snub-high-court-again/

Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?”

As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:

is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.

By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?

“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!

Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!

Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!

Has Alfred E. Neumann been “reborn” as Judge Merrick B. Garland? “Not my friends, relatives, or attorney buddies whose lives are being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their ‘scuzzy, unimportant immigration lawyers,’ so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸Due Process Forever!

PWS

09-28-21

⚔️🛡ROUND TABLE FILES LATEST AMICUS ON NIZ-CHAVEZ ISSUE @ BIA!

Here’s the full brief, drafted by our fearless leader “Sir Jeffrey” Chase:

BIA Niz-Chavez Amicus18078 Final

HERE’S A “KEY QUOTE” FROM THE CONCLUSION:

For the reasons provided above, in absentia orders involving proceedings commenced through a defective NTA are rendered invalid by Niz-Chavez. This is true whether the Board ultimately determines that the decision impacts the Immigration Courts’ jurisdiction, or is in the alternative a claim-processing rule.

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

Thanks so much, “Sir Jeffrey,” my friend and colleague!

Unfortunately, the recent practice of the BIA has been to construe Supreme Court decisions favoring respondents narrowly against them in Immigration Court. Thus, the BIA has needlessly protracted litigation, produced conflicting results, and lessened justice, all while dramatically increasing backlogs. We’ll see whether that practice, apparently designed to appease and please DHS Enforcement and litigators at the DOJ, holds true here.

🇺🇸Due Process Forever!

PWS

08-11-21

⚖️🗽”SIR JEFFREY” CHASE & I QUOTED BY LAW360’S JENNIFER DOHERTY ON MATTER OF A-C-A-A-

Excerpts from Jennifer’s article:

. . . .

Garland’s latest vacatur was well-received by Jeffrey S. Chase and Paul W. Schmidt, who were among 40 retired immigration judges to sign a letter last spring urging Garland to undo all 17 BIA decisions issued by his Trump-appointed predecessors.

“Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane. Why would any party stipulate to an issue if it will simply be ignored on appeal?” Judge Schmidt said in a statement to Law360, calling such agreements “a really important part of encouraging efficiency in litigation and reducing backlog.”

According to Judge Chase, Monday’s order “will again allow valuable court time to be spent focusing only on issues actually in dispute between the parties, a practice that could save hours of hearing time on a single case.”

“And limiting the scope of administrative review to the issues actually raised on appeal by the parties eliminates the need to sacrifice fairness in order to achieve that increased efficiency,” he continued.

. . . .

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

Those with Law360 access can read Jennifer’s full article, entitled “Garland Deals 4th Blow To Trump Policy In Asylum Order.” https://www.law360.com/articles/1406716/garland-deals-4th-blow-to-trump-policy-in-asylum-order

🇺🇸Due Process Forever!

PWS

07-28-21

😎👍YES! IN A HUGE WIN FOR DUE PROCESS, EFFICIENCY, JUDICIAL INDEPENDENCE, & SANE GOVERNMENT, AG GARLAND OVERRULES SESSIONS’S IDIOTIC MATTER OF CASTRO-TUM PRECEDENT & RESTORES IJs’ AUTHORITY TO ADMINISTRATIVELY CLOSE CASES — Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

Judge Merrick Garland — Atorney General Merrick B. Garland
Official White House Photo
Public Realm

The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).

(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.

(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).

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

Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.

Hats 🎩 off to Judge Garland for doing the right thing (even if it did take longer than some of us thought it should)! This also ties in perfectly with the recent common sense restoration of enforcement priorities and prosecutorial discretion at ICE by OPLA head John Trasvina! https://immigrationcourtside.com/category/department-of-homeland-security/immigration-customs-enforcement-ice/office-of-principal-legal-adviser-opla/john-d-trasvina/

After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!

Along those same lines, “Sir Jeffrey” Chase reports some more good news:

More Good News!

Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.

It took far too long, but justice prevailed.

Best, Jeff

That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!

Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”

It’s a telling commentary that finally getting the law back to where it was in 2016, “pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!

🇺🇸Due Process Forever!

PWS

07-15-21

🛡⚔️BREAKING: ROUND TABLE, ALLIES OUT-JOUST GARLAND’S BIA YET AGAIN! — This Time It’s A Smashing El Salvadoran Asylum Victory @ The En Banc 4th Cir. — Portillo-Flores v. Garland (9-6)

Here it is, opinion by Judge Stephanie Thacker:

Portillo-Flores-4th-ElSal-EnBancThe concurring opinion by Judge James Wynn says:

Generally, when the Board of Immigration Appeals errs, “the proper course . . . is

to remand to the agency for additional investigation or explanation.” Alvarez Lagos v. Barr, 927 F.3d 236, 249 (4th Cir. 2019) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). “But that is not an invariable rule.” Id. If the record evidence, considered as a whole, “would compel ‘any reasonable adjudicator’ to reach the opposite conclusion, then a remand is unnecessary, and [this Court] will reverse the Board’s finding.” Id. (quoting Cruz v. Sessions, 853 F.3d 122, 130 (4th Cir. 2017)).

II.
Here, as the majority opinion holds, the immigration judge and the Board of

Immigration Appeals erred by applying the wrong legal standards, arbitrarily disregarding relevant evidence, and failing to explain their decisions adequately. See Maj. Op. at 3, 12– 13, 16–18, 20–21, 25–26, 27–33. And based on such errors, the majority vacates the agency’s determination as to each prong of the asylum analysis—persecution, nexus to a protected ground, and government control—and remands for reconsideration. See id. at 3, 18, 21, 27–33. But when all relevant evidence in the record is properly considered under

the correct legal standards, any reasonable adjudicator would be compelled to conclude 35

that Petitioner suffered past persecution as a child and that his membership in his nuclear family was at least one central reason for that persecution.

. . . .

I conclude by adding that Petitioner has been seeking protection in the United States for more than five years. We should not prolong his quest any more than necessary.

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

Hats off to everyone involved in this!

Particular kudos to Judge Stephanie Thacker who wrote the majority and whose vigorous dissent from the wrong-headed panel decision undoubtedly helped secure en banc review. She stuck to her guns!

Judge Stephanie D. Thacker — Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

Also, much appreciation to Judge James Wynn for his separate opinion 1) calling out the” poppycock” in the dissent; and 2) drawing attention to the highly improper and recurring problem with EOIR keeping deserving asylum seekers dangling for many years while they think of bogus reasons to deny asylum to please their “enforcement masters” at DOJ and DHS. This is neither due process nor justice! No wonder the backlogs are sky high!

Honl. James Wynn — Hon. James Wynn
U.S. Circuit Judge
Fourth Circuit
PHOTO: Wikipedia

As my esteemed Round Table colleague Hon. “Sir Jeffrey” Chase said:

“It’s remarkable how much good law is packed into this one decision.”

The corollary to that is: “It’s remarkable how much bad law and poor judicial performance is packed into EOIR’s bungling of these life or death cases which deserve and require both expert judges and fair, timely adjudication in accordance with asylum law and due process.”

When are Garland, Monaco, Gupta, and Clarke finally going to pull the plug on “Club Denial” at the BIA and bring in some real judges who will respect individuals’ civil, constitutional, and human rights, and start setting forth much better precedents that incorporate the wise teachings of folks such as Judge Thacker and Judge Wynn? The latter two jurists certainly appear to understand the Immigration Court system and its many (potentially fixable, but not the way Garland is going about it) flaws and shortcomings much better than anyone in EOIR HQ or on Garland’s staff.

The ongoing travesty of justice @ EOIR and the lives threatened thereby continue to be a national disgrace on Garland’s watch!

🇺🇸Due Process Forever!

PWS

06-29-21

HISTORY: YOUNGER THEN THAN NOW! — “Sir Jeffrey” Chase & Me @ The International Association of Refugee Law Judges’ Seminar in Nijmegen, The Netherlands, 1997

“Sir Jeffrey and Me — “Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

Well, we’re not as young as we were. But, we’re still working together to raise awareness and advance the principles of the U.N.Convention & Protocol on the Status of Refugees and to restore due process and fundamental fairness to the dysfunctional Immigration Courts through all of our amazing colleagues on the Round Table of Former Immigration Judges.

🇺🇸Due Process Forever!

PWS

06-27-21

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1 Matter of A-B-, issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2 Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3 And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being. Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment. If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5 That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6 While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.” In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone. Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave. While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7 While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country. While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone. In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8 However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9 And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset. The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10 Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection. In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous. However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County. The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12 But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted. Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist. However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course. The problem is compounded by the particular composition of the BIA at present. For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims). Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-. This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state. The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy. Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward. Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase. All rights reserved.

Notes:

Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).

27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).

27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).

28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).

26 I&N Dec. 388 (BIA 2014).

The regulations under consideration at that time were never issued.

27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).

UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.

James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.

Hathaway and Foster, supra.

Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).

Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).

L-E-A- I, supra at 47.

See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

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Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

- Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
- The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
- There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
- Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
- Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis.
- No regulation can bring decisional integrity and expertise to a body that lacks both!
- Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
  - Progressive judges appointed to BIA: 0
  - Progressive judges appointed to Immigration Court: 0
  - Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
  - Billy Barr Selected Immigration Judges Appointed: 17
  - “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
  - Number of BIA precedents decided in favor of respondent: 2
  - Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense?

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

⚔️⚔️🛡ROUND TABLE SALLIES FORTH AGAIN AS 9TH VACATES GARLAND BIA’S PRECEDENT IN MATTER OF K-S-E-, 27 I&N Dec. 818 (BIA 2020) (misconstruing “firm resettlement” in effort to punish, harm asylum seekers)

Hon. “Sir Jeffrey” Chase reports:

Hi all:We filed an amicus brief in the attached case (drafted for us by Sullivan Cromwell) challenging the BIA’s precedent decision in Matter of K-S-E- before the 9th Circuit. K-S-E- held that firm resettlement can be found based on the availability of permanent residence in a third country, regardless of the asylum seeker’s unwillingness to pursue such status.

The 9th Cir. yesterday vacated the Board precedent and remanded for the Board to further consider the firm resettlement issue, inter alia.

Best, Jeff

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

To quote one of my esteemed Round Table colleagues:

Excellent news! Should an ethnic Korean from China or Japan be forced to accept an offer of firm resettlement from North Korea? To quote our President, “C’mon, man!”

“C’mon, man,” indeed! For Garland’s BIA it’s just a question of “what can we do to screw asylum seekers today!” The level of absurdity, irrationality, and/or illegality is largely irrelevant.

It’s not like Sessions and Barr had any concern for the law. The BIA knew there would be no meaningful consequences as long as they carried out the White Nationalist anti-immigrant agenda of the Trump regime!

But, you could say much the same about Garland! There was more than ample evidence and documentation of anti-asylum bias and deficient decision making to replace of the BIA with “real judges” from among progressive experts on the day Garland was sworn in as AG.

Yet, three months later, nothing much has changed and the assault on asylum seekers and justice at Garland’s EOIR continues largely unabated. Indeed, Garland’s totally inappropriate, due process damaging, appointment of yet more (17) “Barr-picked judges” has further aggravated the problem to a simply astounding degree! It’s like you’re behind by three touchdowns in the fourth quarter and your so-called “head coach” awards your opponents 17 more points for no particular reason! What on earth is going on in Garland’s head?

Real judges on a “Reform BIA” from the ranks of progressive experts would have Matter of K-S-E-, Matter of A-B-, Matter of L-E-A-, Matter of Castro-Tum and a host of other Trumpist garbage “sorted” in no time and the now-dysfunctional EOIR system back on track to due process and functionality. What’s glaringly missing is any semblance of awareness, urgency, and competent progressive leadership from Garland and those surrounding him!

🇺🇸Due Process Forever!

PWS

06-11-21

🏴‍☠️👎🏽🤮PARODY OF JUSTICE @ “JUSTICE” — EOIR’s ETHICAL WASTELAND EXPOSED BY FOIA: The Only “Surprise” Here Is Garland’s Failure To “Clean House” @ EOIR, Remove Unethical Lawyers @ DOJ, & Demand Accountability For Ethically Challenged DHS Attorneys!🦨

EYORE — “Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Hon. “Sir Jeffrey” Chase reports to the Round Table:

From: Frederick, Kent

Sent: Friday, June 01, 2018 12:59 PM

To: Weil, Jack (EOIR)

Subject: Matter of Castro-Tum/ IJMorley

Dear Judge Weil:

Just for reference, here is the portion of the decision that 1.1Morley violated:

Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §

1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).

Kent J. Frederick

Chief Counsel

Office of the Chief Counsel

U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107

(267) 479 —___(2_622_479-3456 (fax)

(b)(6),(b)(7XC)

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

Thanks to Judge Sue Roy for forwarding this:

[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ. Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.

It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.

While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.

Best, Jeff

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

Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.

I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)

Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.

I’ll let the various comments I have received speak for themselves:

When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation.

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

At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.

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

WOW! This is crazy.

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

Wow! Just WOW! We always knew it was happening, but this is pretty blatant evidence!

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

Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.

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

Shameful, what happened to the appeal process Mr. Fredrick!

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

Is anyone really surprised?

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

Disappointed, but not surprised.

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

And has been happening ever since I started practicing in the mid-eighties. I agree it is totally unacceptable.

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

Jack has been nothing but a profound disappointment. I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing? I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.

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

Completely shameful, but not surprising. We frequently suspected this kind of thing went on.

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

The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.

BUT, HERE’S THE REAL PROBLEM: AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!

EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.”

Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!

Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!

Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).

Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.

How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice?

Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships.

Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation.

It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.”

But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!

Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!

Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

🇺🇸🇺🇸⚖️🗽Due Process Forever!

PWS

05-22-21

🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership! — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html?action=click&module=Opinion&pgtype=Homepage

Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Immigration Courts Aren’t Real Courts. Time to Change That.

May 8, 2021

Image

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.

Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.

“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.

The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.

How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.

At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”

By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.

If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.

The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.

The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.

In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.

First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.

This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.

A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.

One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.

If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.

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

We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!

As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insulting stewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!

It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.

Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?

For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”

“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!

The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23” — a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”

Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!

As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!

Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.

In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!

As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.

Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!

Due Process Forever!

PWS

05-09-21

⚖️HON. “SIR JEFFREY” S. CHASE SPEAKS OUT ON GARLAND’S TONE-DEAF, ANTI-PROGRESSIVE, SLAP IN THE FACE TO IMMIGRATION EXPERTS! — Garland, Who Lived His Life In Privileged “Ivory Tower” Positions Thinks Those Serving In The Trenches Who Actually Know What’s Wrong With American Justice & Live It Every Day Aren’t Important & Don’t Count! — He’ll Blow You Off Until You Yank His Chain!

17 New Immigration Judges Largely Held Prior Gov’t Roles – Law360

From an article by Alyssa Aquino @ Law360:

. . . .

However, former immigration judge and current private attorney Jeffrey Chase raised concerns over the apparent speed of the appointments. Immigration law and its administration changed vastly under former President Donald Trump, whose attorneys general used their self-referral powers to issue precedents that, in some cases, restricted the number of people who can qualify for asylum. The Justice Department has also curbed immigration judges’ discretionary powers, such as their ability to administratively close or continue cases, and instituted case completion quotas.

“If you’re looking at this whole system, shouldn’t you put your hirings on hold until you actually figure out your whole needs, how to train them and what law will apply to them?” Chase said.

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

Some seem to “fob off” these “Miller/Barr leftover” picks as just “in the pipeline!” I call BS!

Garland has conducted more “outreach” to “Trumpist holdovers” than he has to progressive advocates and the NDPA! Was this election really about giving Garland a chance to continue the Miller, Sessions, Barr White Nationalist, misogynist, anti-asylum, anti-due-process, anti-private-bar regime @ the EOIR Clown Courts under Dem auspices?

You have no right to a Federal job until you take the oath and actually begin work. And that goes for fake “Billy Barr” and absurd “Monty Python” Wilkinson appointments too, unless these folks were in their judicial positions prior to the November elections.

I know because I actually lived through “hiring freezes” in the Reagan and Carter Administrations. Reagan even cancelled all Federal job offers retroactively to the date of his election on Nov. 5, 1980. And, he got away with it! His action was upheld by a Federal Court even in cases of those who had moved, quit jobs, or made other arrangements in reliance on their offers of Federal employment. https://www.washingtonpost.com/archive/politics/1981/02/26/job-freeze-by-reagan-is-upheld/6ee18e32-b8bf-4fdd-90f1-7180c2cafd9d/?no_nav=true&tid=a_classic-iphone.

IJs are classified as DOJ attorneys in the “excepted service.” They actually have fewer rights than most of those selected under the civil service competitive system who had job offers retroactively withdrawn by Reagan.

As far as I can tell from the EOIR release, whatever the gobbledygook about “Barr,” “Monty Python,” or “Garland” “appointments,” it appears that none of these folks actually entered onto duty in their judicial jobs until April, well after Biden’s inauguration and well after the election was decided. It was even after Garland’s swearing in.

Indeed, the “delayed announcement” confirms that the Garland folks knew they were screwing over progressives and individuals caught in the EOIR web of dysfunction and disrespect and were hoping to “slip this in under the radar screen.” Usually, the DOJ can’t wait to tout their new “judicial” hires at EOIR!

Given the mountains of criticism from progressives about the composition of the Immigration Judiciary under Sessions and Barr, the clear efforts by them to redesign the IJ job so that it would be unattractive to most minority attorneys, experts, and due process activists, and the intentional lack of recruitment outreach to “underrepresented communities” of lawyers (basically minority lawyers), there is no excuse for Garland’s actions! These lists were tainted!

Moreover, the Biden Transition Team knew that progressive experts recommended “sea changes” in judicial recruitment, hiring, and training at EOIR and that even those already in EOIR judicial positions under Trump be carefully re-examined under “merit criteria” as to their suitability for judicial positions and their demonstrated commitment to due process for migrants and respect for attorneys.

Additionally, all newly appointed EOIR “judges” serve a two-year probationary period during which they basically can be terminated “at will” by the AG. Even those with limited “tenure” can be transferred out of their judicial positions and moved to other jobs, as those of us “purged” from the BIA by Ashcroft for political reasons can attest. Not only was it totally inappropriate for Garland to go ahead with these “Miller Lite” hires, but he and his team should re-compete the positions of all Barr probationary appointments under revised merit criteria designed to attract a wider, more diverse, and more qualified group of applicants.

These are NOT life-tenured appointments! At most, “probationary judges” who fail to achieve merit reappointment and were previously Federal employees might be entitled to a reassignment to another government attorney position (not necessarily an adjudicator position) at the same pay level. That’s essentially what happened to those of us “purged” from the BIA by Ashcroft in 2003. We were’t even invited to apply for or interviewed for our own jobs! The whole process was done without application of any “merit principles” whatsoever!

The process under which these 17 were selected was intentionally designed to exclude progressives, minorities, and other experts who would be committed as judges to upholding due process and the legal rights of asylum seekers and other migrants! Garland’s message is clear: Immigration expertise, experience representing individuals in Immigration Court, and commitment to enforcing due process and holding ICE accountable DON’T COUNT!

Republicans play “hardball.” Garland, like Dems before him, is a wimp!

Here are the “stats” that should stand out to NDPA members for these 17 tainted “judicial selections:”

Number of known AILA members: 0 (maybe 1)

Number of clinical professors: 0

Number of human rights experts: 0

Number of noted immigration, human rights, immigration scholars: 0

Number of NGO attorneys: 0

Number who represented an individual in Immigration Court in past year: unknown, but max of 2

Number who have been involved in advocating for positive immigration reform: 0

Number who would appear on any list of the “top 100 immigration experts in America:” 0

Number who have won awards for pro bono litigation representing migrants during last 4 years: 0

Number with recently published immigration scholarship: 0

Number with experience administering major pro bono programs: 0

Number with recent community service awards: 0

Number involved with Round Table amicus briefing efforts: 0

Number who have appeared in video training sessions for immigration advocates in past year: 0

Number who have authored or contributed to “white papers” on improving due process in Immigration Court: 0

Number who applied under “Trump-era” announcements and procedures: 17

Number of progressive judges confirmed and sitting on Article III Courts under Biden: 0

Number of progressive Immigration Judges appointed under Biden: 0

Number of regressive Immigration Judges appointed under Biden: 17

17 Immigration Judges are NOT going to make a statistical difference in eliminating or reducing a largely self-created 1.3 million cases backlog! But, they will make a huge difference in the lives of individuals and their lawyers caught up in this designed to fail system. Moreover, initial appointments set a tone.

Additionally, as already pointed out by others, Garland’s continued staffing of “Miller Lite Star Chambers” like the unnecessary and due process denying “Richmond VTC ‘Court’” — without any discussion with stakeholders and advocacy groups who have unanimously opposed it — is a total disgrace!

Folks in the NDPA, Garland is sending you a message: GO POUND SAND! I CARE MORE ABOUT “HUMORING” THOSE SELECTED BY STEPHEN MILLER, BILLY BARR, & “MONTY PYTHON” THAN I DO ABOUT YOU, YOUR EXPERTISE, AND THE HUMANS YOU REPRESENT! AND, I FULLY INTEND TO SUBJECT YOU AND YOUR CLIENTS TO THE SAME “DUE PROCESS DENYING, DEMEANING VTC STAR CHAMBERS” THAT THE TRUMP ADMINISTRATION DESIGNED, OVER YOUR OBJECTIONS, TO KEEP THE “EOIR DEPORTATION RAILROAD RUNNING!”

Heck, I’m retired. But, if I were out there in the trenches like most of the members of the NDPA, I’d take this personally, as exactly the insult and put down by Garland that it is and react accordingly. After eight years of Bushie political hacks, eight years of Obama’s indolent approach to EOIR, four years of “Gonzo” Sessions, Whitaker, “Billy the Bigot,” and “Monty Python” we deserve better!

It’s up to you to get energized, get mad, get even, and force Garland and his outrageous “Star Chamber Courts” to their knees! Because if you’re waiting for him to “wake up and get religion on EOIR,” read your letters, act on your “white papers,” respect your achievements, or treat your clients as humans, you’ll be waiting in vain!

Star Chamber Justice — “Judge Garland loves what we do here in the VTC! He wants us to expand! This kind of ‘judging’ gets the quickest results! And, you don’t need to know any immigration law!”

🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-08-21

🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!

Grundoon
From Walt Kelly’s “Pogo”
SOURCE: Pininterest

Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]

https://en.wikipedia.org/wiki/Pogo_(comic_strip)

https://www.jeffreyschase.com/blog/2021/4/29/the-dojs-contradictions

Contact

The DOJ’s Contradictions

In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13. In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1 In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.” The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum. In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.

The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General. Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2

The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.” Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?

As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees. Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval. In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts. I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.

Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3 The indictment was filed in December, 2020, while the Trump Administration was still in office. The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).

The indictment contains a specific section titled “Political Influence in El Salvador.” The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.” It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence. The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.” According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits. The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”

The indictment also contains a section explaining the purpose of the Ranfla Nacional. The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”

The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice. They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law. In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.” Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.

So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature? And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments? Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.

In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:

immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4

This matter deserves the immediate attention of Attorney General Merrick Garland. The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death. At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Notes:

Zelaya-Moreno v. Wilkinson, No. 17-2284, ___ F.3d ___ (2d Cir., Feb. 26, 2021).

https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly.

E.D.N.Y. Docket No.: 20-CR-577 (JFB). The Department of Justice’s Press Release can be found here: https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-leaders-charged-terrorism-offenses-united-states.

Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).

APRIL 29, 2021

Reprinted by permission.

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

As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties” with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.

At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!

Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.

Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!

A few historical notes:

I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.

Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in!

Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”

EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-01-21

From The Hill:

🇺🇸Due Process Forever!

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KEY EXCERPT:

Many, many, many thanks to “Sir Jeffrey” Chase for collecting the “sentiments of the group” and preparing these cogent comments under extreme pressure!

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Rodriguez v.Garland, 5th Cir., 09-27-21, published

🇺🇸Due Process Forever!

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Here’s the full brief, drafted by our fearless leader “Sir Jeffrey” Chase:

HERE’S A “KEY QUOTE” FROM THE CONCLUSION:

🇺🇸Due Process Forever!

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Excerpts from Jennifer’s article:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Here it is, opinion by Judge Stephanie Thacker:

The ongoing travesty of justice @ EOIR and the lives threatened thereby continue to be a national disgrace on Garland’s watch!

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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The latest from the Hon. “Sir Jeffrey:”

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

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Hon. “Sir Jeffrey” Chase reports:

🇺🇸Due Process Forever!

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Hon. “Sir Jeffrey” Chase reports to the Round Table:

🇺🇸🇺🇸⚖️🗽Due Process Forever!

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Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Due Process Forever!

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🇺🇸🗽🗽⚖️🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

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