⚖️🗽Round Table Adds Voice To Crescendo Of Civil Rights, Human Rights, Racial Justice, Social Justice, Immigrants’ Rights, Good Government Groups Asking Garland For Progressive Due Process Reforms @ Dysfunctional EOIR! — Failure To Vacate Trump-Era “Killer Precedents” Adds To The Injustice & Chaos In Garland’s Disgracefully Failed “Courts!”

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Here’s a link to the letter:

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

Thanks to Round Table “Fearless Knightess” Judge Sue Roy of NJ for spearheading this effort and taking the drafting lead. Now, a private practitioner, Sue is one of the thousands of lawyers and millions of individuals and family members directly affected by the continuing dysfunction at EOIR and Garland’s failure to bring in progressive leadership from the NDPA to make long-overdue “no brainer” reforms @ EOIR.🆘

In an interesting coincidence, the 17 improperly certified precedents from Sessions, Whitaker, and Barr matches the 17 inappropriate and insulting “Miller Lite/Barr Leftover” Immigration Judge appointments that Garland just made!

One thing is for sure: Garland its NOT getting the job done for progressives nor is he restoring due process at EOIR. Instead, the deadly,☠️ disgusting 🤮downward spiral continues every day!

🇺🇸🗽Due Process Forever!

PWS

05-25-21

🏴‍☠️👎🏽🤮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”

Kangaroos — “Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

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

⚠️🆘JUDGE GARLAND’S FAILURE TO ADDRESS HIS DYSFUNCTIONAL IMMIGRATION COURTS CONCERNS UNION, ADVOCATES, EXPERTS, & UNDERMINES HIS LEADERSHIP ON RACIAL INJUSTICE 🏴‍☠️ — Continuation Of Trump-Miller-Sessions-Barr White Nationalist, Anti-Asylum, Racist, Misogynist Agenda, Lack Of Plan To Replace GOP Hacks & Unqualified Judges Is A “Bad Look” For New AG & Team! — Round Table Star Judge Sue Roy Speaks Out!

Suzanne Monyak
Senior Reporter, Immigration

https://rollcall.com/2021/04/22/despite-bidens-union-support-immigration-judges-left-waiting/

Suzanne Monyak reports for Roll Call:

. . . .

Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.

“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”

. . . .

The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.

The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.

Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.

“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.

While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.

. . . .

Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.

Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.

“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”

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

Thanks, Sue!

Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independence to the Department of Justice look like a farce.

You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”

Woman Tortured — “We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:

Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Judge Merrick Garland — He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it!
Official White House Photo
Public Realm

Due Process Forever!

PWS

04-23-21

🏴‍☠️NEW ADMINISTRATION, SAME OLD TONE-DEAF, INCOMPETENT🤡 EOIR! — Latest Attempt To Unilaterally “Micromanage” Dockets From “Falls Church Tower” Arrogantly Disses Meaningful Public Input, Compounds Problems, Ignores Best Practices, Attempts To Shift Blame For Grotesquely Mismanaged 1.3 Million Case Backlog, Mocks Due Process! — This Is NOT Justice — This Is NOT A Court!

Please see EOIR’s invitation to an information session regarding revised Case Flow Processing.

_________________________________________

Executive Office for Immigration Review

Office of Policy

Communications and Legislative Affairs Division

PAO.EOIR@usdoj.gov

703-305-0289

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

Just a few “off the top of my head” observations:

1) The process would work much better if EOIR consulted the stakeholders for their ideas before issuing any memo.

2) In the absence of a real e-filing system, the assignment of trial dates without consulting counsel as to their availability is likely to generate lots of motions for different dates.

3) In a system with 1.3 million cases, why not ask how much time counsel needs for prep and filing rather than setting arbitrary dates? “Live (or even TV) Masters” give the IJ and the parties an opportunity to “negotiate” mutually agreeable, realistic hearing dates. That, in turn, minimizes the number of motions to continue or reset and maximizes the chance of actually getting the case heard on the first scheduled Individual (Merits) Hearing date (barring more Aimless Docket Reshuffling from EOIR “management,” which is a continuing problem).

4) Given how messed up the EOIR dockets are, what’s the point of pushing for 30 day filings when the merits hearing might not be for years?

5) How do you encourage stipulations with precedents that make them worthless when the AG or BIA or IJ can choose to ignore them to deny? Stipulations seem to bind only one party: the respondent. Can’t imagine a much clearer indication of systemic bias or lack of due process and impartiality.

6) To me, this looks like just another gimmick to allow EOIR to “deny and deport” for failure to meet arbitrary filing deadlines, without EOIR committing to any reasonable limits on its own scheduling of merits hearings. The R has to “race or lose;” but, EOIR can (and does) take forever with no accountability.

7) What’s the empirical basis for all EOIR’s assumptions as to what best and most efficient practices are? How would an agency renowned for “malicious incompetence” know? Best and most efficient for whom? Falls Church bureaucrats? Politicos on the 5th Floor of the DOJ?

8) I completed lots of cases at Master, besides in absentias. In some situations, I suggested areas for stipulation or agreement, or invited joint motions to transfer to my “short calendar” if certain conditions were met. I’m not convinced that “interactive” Masters serve no purpose. I’d be interested in whether the private bar sees these procedures as an improvement. Amazing what you can actually accomplish when you have the parties and counsel in your actual presence as an IJ. Amazing what an IJ can actually teach and communicate from the bench during a “live” master.

9) To some degree, this ham-handed attempt at micromanagement “from afar and on high” looks like a restoration of the paper heavy and labor intensive chaos that existed in the system before EOIR was created in 1983 and the late Chief Judge William R. Robie “invented” Master Calendar as an essential scheduling tool that brought order from that chaos. If EOIR ever got competent court administration and created a functioning e-filing system (like almost every other tribunal in the U.S.), the private bar and actual sitting IJs could undoubtedly suggest some helpful “tune-ups” to the Master Calendar process to take advantage of efficiencies made possible through e-filling.

10) This memo also violates one of the key principles of effective judicial administration — that docket management and scheduling of cases should be left to local judges in conjunction with the private bar and the local DHS Chief Counsel. They, not bureaucrats in Falls Church or DOJ policies, are in the best position to develop the most reasonable and efficient docketing and scheduling procedures coordinator that particular court. The major contribution that “EOIR Headquarters” could make would be a functioning e-filing system — an area where they have an inexcusable two decade history of abject failure, wasted effort, and squandered public resources.

10) To me, this looks like another “designed to fail” edict from the purveyors of disaster, disorder, and injustice!

11) Other than that, it’s great!

Those wanting to contribute to an organized response to this latest “gut punch” might want to contact Michelle Mendez, Director of Defending Vulnerable Populations at CLINIC, or retired Judge Sue Roy (NJ Bar, AILA, Round Table).

On April 7, after you have attended the EOIR session, you might want to “tune in” to our panel for the Hispanic National Bar Association entitled “Who’s Judge Is It Anyway?” We’ll discuss ideas on how attorneys, particularly those from under-represented groups, can go about forcing change to the institutionalized racism, grotesque disorder, and systemic abuses of due processes, best practices, and human dignity still going on in our Immigration Courts even as the Biden Administration claims to be focusing on racial justice in America!

https://immigrationcourtside.com/2021/03/29/%f0%9f%a7%91%f0%9f%8f%bd%e2%80%8d%e2%9a%96%ef%b8%8f%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8whos-judge-is-it-anyway-the-crisis-of-independence-in-our-immigration-court/

Let’s find ways to force Judge Garland out of his “ivory tower funk” and to make him start paying attention to the Constitutional mockery, amateurish jurisprudence, defiance of common sense, and racist dehumanization of “the other” going on in “his” wholly owned and beyond incompetently operated “courts!”

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

04–05-21

🗽LED BY HON. SUSAN ROY🦸🏻, ROUND TABLE 🛡⚔️NOTCHES ANOTHER “W” IN THE NEVER-ENDING FIGHT FOR CIVIL RIGHTS, RACIAL EQUALITY, AND IMMIGRANT JUSTICE⚖️ IN AMERICA🇺🇸 — This Time We Helped The NJ Supreme Court Get It Right!

https://njcourts.gov/attorneys/assets/opinions/supreme/a_8_9_20.pdf

“Sir Jeffrey” Chase submitted this:

Hi all:The Round Table was on the winning team in a (lengthy) decision issued yesterday by the NJ Supreme Court concerning the detention of criminal defendants who are noncitizens based on the possibility of their removal by ICE.

Thanks to Sue Roy, who solicited the Round Table’s involvement, and then drafted our brief!

Except from the decision:

A group of fifty immigration law scholars and clinical professors (Professors), and a second group of twenty-five former immigration judges and members of the Board of Immigration Appeals (Former Judges), submitted comprehensive overviews of the immigration process. They highlight the complex, dynamic, and discretionary nature of the removal process and argue that state trial courts are ill-equipped to evaluate a defendant’s likelihood of removal, which is too speculative even for experts to predict. They submit that a civil immigration detainer, like an individual’s immigration status, is not a reliable indicator that a person will be removed from the country.

The American Immigration Lawyers Association (AILA) and the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, and the Harvard Law School Crimmigration Clinic echo concerns about how difficult it is to forecast the risk of removal for a non- citizen. AILA adds that permitting pretrial detention based on a person’s risk of removal will have the disproportionate effect of incarcerating low-level offenders, the vast majority of whom are recommended for release under the CJRA.

Finally, Legal Services of New Jersey (LSNJ) and Make the Road New Jersey, joined by twelve other organizations (Make the Road), highlight the consequences of pretrial detention for non-citizens, their families, and their communities. LSNJ also challenges the need for pretrial detention given the avenues non-citizens have to resolve their criminal cases while in ICE custody. Make the Road adds that allowing pretrial detention based on immigration status undermines trust in law enforcement in immigrant communities and makes it harder for law enforcement to investigate and prosecute crimes.

Below is the summary from petitioner’s counsel, NJ Immigration Attorney Jerry Gonzalez:

Our firm represented Mr. Lopez-Carrera, who was ordered removed and physically removed from the US while his criminal case was pending (he had lost at the BIA and state was trying to get him back).

Props to our Amicus friends!Patrick McGuinness(Immigration counsel), Sue Roy, Eric Mark, Michael Noriega, Raquiba Huq and Professor Joanne Gottesman.Great team work!!!

Issue: In these consolidated appeals, the Court considers whether the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, empowers judges to detain defendants who are non-citizens to prevent immigration officials from removing them from the country before trial.

Holding: The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process…. The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE.

Enjoy the light reading!

Jerry

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

Many thanks to all involved, with particular thanks to Judge Sue Roy for her energy, scholarship, advocacy and continuing dedication to due process under law. It’s an honor to work with and be inspired by you, my friend.

Due Process Forever!

PWS

03-31-21

🏴‍☠️INSIDE A FAILED AND UNJUST SYSTEM: Reuters Report Explains How The Trump Administration Destroyed Due Process, Fundamental Fairness, & Humanity In The U.S. Immigration Courts!

Mica Rosenberg
National Immigration Reporter, Reuters

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179

Reade Levinson, Kristina Cooke, & Mica Rosenberg report for Reuters:

(Reuters) – On a rainy September day in 2018, Jeff Sessions, then U.S. attorney general, addressed one of the largest classes of newly hired immigration judges in American history.

“The vast majority of asylum claims are not valid,” he said during a swearing-in ceremony in Falls Church, Virginia, according to his prepared remarks. If judges do their job, he said, “the number of illegal aliens and the number of baseless claims will fall.”

It was a clear message to the incoming class: Most of the immigrants who appear in court do not deserve to remain in the United States.

As U.S. President Joe Biden works to undo many of the restrictive immigration policies enacted by former President Donald Trump, he will confront one of his predecessor’s indelible legacies: the legion of immigration judges Trump’s administration hired.

The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.

Biden has promised to dramatically expand the courts by doubling the number of immigration judges and other staff. That’s a worthwhile effort, said Stephen Legomsky, a former chief counsel of the U.S. Citizenship and Immigration Services who is now a professor emeritus at Washington University School of Law in St. Louis. “But the challenge is going to be tremendous.”

Although there are no statutory limits on the number of judges who can be hired, expanding the court would be costly and could take years, immigration law experts said.

“The fact that these (Trump-era) judges are already in place inhibits him a great deal,” Legomsky said of Biden.

Stephen Miller, the key architect of Trump’s immigration agenda, told Reuters that the administration had aimed to hire more immigration judges as part of an effort to “create more integrity in the asylum process” and quickly resolve what he termed meritless claims to cut down on a massive backlog.

“Most of the people that are coming unlawfully between ports of entry on the southwest border are not eligible for any recognized form of asylum,” Miller said in an interview. “There should be a very high rejection rate.”

Under U.S. law, immigrants are eligible for asylum only if they can prove they were being persecuted in their home countries on the basis of race, religion, nationality, membership in a particular social group or their political opinions. Miller said many migrants arriving at the border are coming for economic reasons and present fraudulent asylum claims.

Sessions, who as attorney general had the final say in hiring immigration judges, told Reuters that “the problem is not with the Trump judges. The problem was with some of the other judges that seemed to not be able to manage their dockets, or, in many cases, rendered rulings that were not consistent with the law.

The Trump administration’s successors to Sessions, who was forced out in 2018, did not respond to requests for comment.

. . . .

“There has been a significant lack of basic understanding of immigration law and policy with many – not all – but many of the new hires under the Trump administration,” said Susan Roy, an attorney and former immigration judge appointed during the administration of President George W. Bush who has represented immigrants before some new judges.

Reuters spoke with eight other former immigration judges, five of whom served under Trump, who generally echoed her view. Sitting immigration judges are not permitted to speak to the media.

Even for judges with immigration backgrounds, the type of experience they have has been controversial. In 2017, a report commissioned by the Justice Department found a lack of diversity of experience among judges hired, due to an excess of former prosecutors here from Immigration and Customs Enforcement.

. . . .

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

Read the rest of the report at the link.

Hon. Sue Roy is a distinguished member of our Round Table of Former Immigration Judges 🛡⚔️ now in private practice representing asylum seekers and other migrants in Immigration Court.

Hon. Charles Honeyman, quoted elsewhere in the article, is also a member of the Round Table who actually was removed from a case for failing to carry out what he believed to be improper instructions from his “supervisors” who were implementing Sessions’s anti-immigrant policies.

Stephen Legomsky is a former USCIS Senior Executive and esteemed retired Professor who generally is acknowledged as one of American’s leading scholar-experts on immigration and human rights.

Judge Dana Leigh Marks, quoted elsewhere in the article, is a former President of the National Association of Immigration Judges who also successfully argued the landmark Supreme Court case INS v. Cardoza-Fonseca, which established the generous well-founded fear standard for asylum.

Sessions and Miller are notorious White Nationalist xenophobes who have neither represented asylum seekers nor been Immigration Judges. Their efforts to eradicate international norms and legal protections for vulnerable asylum seekers, and their particular bias against female asylum seekers, have been widely criticized and panned by human rights experts throughout the world, as well as enjoined or overruled by some U.S. Courts. They were architects of the widely condemned child separation policy and the New American Gulag (“NAG”).

EOIR is the failed DOJ agency that houses the dysfunctional Immigration Courts.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-08-21

THANKSGIVING 🙏🏼 UPDATE ON ROUND TABLE 🛡⚔️ BATTLES FROM SIR JEFFREY! — Mostly Wins, One Disappointment!

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

Hi all: A few outcomes right before the holiday (two good, one bad):

(1) The Fourth Circuit just granted the motion for rehearing en banc in Portillo-Flores v. Barr, in which the Round Table filed an amicus brief. This was a decision with a very problematic unwilling/unable determination by two judges (the petitioner, who was 14 when the events occurred, stated on the third time he was asked that it was possible the police might have taken some action), and a very strongly worded dissent.

(2) In a bond case in the Second Circuit in which we also filed an amicus brief in a case represented by Legal Aid., Arana v. Barr, the petitioner was released from custody today after having two prior requests denied. Legal Aid believes our brief was helpful in achieving that result. Counsel is expecting a stipulation for dismissal without prejudice.

(3) The bad news: in a petition to the 4th Circuit in support of CAIR Coalition involving Matter of A-B- issues, the 4th Cir. denied the petition for review, but did so in an unpublished decision.

Wishing everyone a very safe and happy Thanksgiving!

All my best, Jeff

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

Thanks, Sir Jeffrey!

I’m so thankful for all of the fantastic work that you and our other knightesses and knights of the Round Table do to keep due process and best practices on the forefront and spread truth in the face of tyranny, lies, and false narratives. While we often focus on the weekly amicus briefs we file with tribunals across the nation, the work also goes on in analysis, public speaking, media interviews, teaching, political involvement, video appearances, and grass roots pro bono and community work.

For example, our amazing colleague Judge Charlie Pazar of Tennessee just reported that he was featured on a CLE panel entirely devoted to the work and impact of our Round Table! Way to go Charlie! You are one of those who tirelessly works to improve American justice on all levels and you are certainly “super generous” in sharing your time, knowledge, expertise, and perspective!

Just recently, Sir Jeffrey, along with Round Table knightesses Judge Denise Slavin and Judge Sue Roy, in addition to yours truly and our friend NAIJ President Judge Ashley Tabaddor, were quoted by Suzanne Monyak in a Law360 article about the future of the NAIJ and the Immigration Court in a Biden Administration. Sadly, the article is “hidden behind the pay wall,” but those with access can read it in its entirety.

Compare these unselfish, teamwork-oriented, effective, expert professional activities aimed at improving the justice system and access to it for everyone with the disgraceful, ignorant, divisive, counterproductive, and often downright racist and illegal actions of the current regime’s immigration kakistocracy, starting, but by no means ending, with the deadly ☠️⚰️🏴‍☠️ “EOIR Clown Show” 🤡!

Think what a “Better EOIR” and a “better bureaucracy,” led by members of the NDPA could do to solve problems, promote the rule of law and best practices, and make “equal justice for all” a reality rather than a false promise that is intentionally never fulfilled! It isn’t rocket science. But, it does take replacing the kakistocracy, on all levels, throughout Government with experts from the NDPA committed to achieving “good government in the public interest.”

Due Process Forever!

PWS

11-27-20

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON AILA LITIGATION ABOUT NEW JERSEY IMMIGRATION COURTS⚖️!

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!

By Hon. Sue Roy

Former U.S. Immigration Judge

Exclusive to Courtside

Oct. 8, 2020

As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.

This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.

As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.

Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.

It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.

Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.

Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.

The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.

Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.

There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.

As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.

We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.

NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.

Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.

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

Thanks, Sue, for all you do for due process!

Here are links to my previous reports on the litigation:

https://immigrationcourtside.com/2020/09/05/22729/

🏴‍☠️☠️🤮👎KAKISTOCRACY WATCH: NJ AILA Sues EOIR’s Malicious Incompetents To Stop Deadly ☠️☠️☠️🤮 In-Person Hearings

Due Process Forever!

PWS

10–08-20

🏴‍☠️☠️⚰️🤮⚔️🛡TWO RECENT LAW360 ARTICLES HIGHLIGHT ROUNDTABLE’S SUPPORT FOR AILA’S LITIGATION AGAINST DANGEROUS CONDITIONS IN NEWARK IMMIGRATION COURT! —”It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.” — But, sadly, not very surprising to those in the “Immigration Community” forced to deal with EOIR’s now chronic disregard and disrespect for human life, on several levels, on a daily basis!

Star Chamber Justice — “Justice”
Star Chamber
Style

https://www.law360.com/immigration/articles/1306711/ex-immigration-judges-say-nj-court-risking-public-health-

Ex-Immigration Judges Say NJ Court Risking Public Health

By Sarah Martinson

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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.

In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.

The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.

“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”

In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.

The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.

The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.

The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.

“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.

In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.

A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.

AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”

“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.

Counsel for the federal government declined to comment Wednesday.

AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review et al., case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Stephen Berg.

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

https://www.law360.com/articles/1307316/nj-immigration-attys-can-t-stop-in-person-hearings-for-now

NJ Immigration Attys Can’t Stop In-Person Hearings For Now

By Jeannie O’Sullivan

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.

During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.

The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.

“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”

The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.

“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.

Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.

“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”

The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.

The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.

The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.

The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.

The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review, case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Jennifer Doherty and Alyssa Aquino. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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

Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮

I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?

When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?

To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!

I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!

Due Process Forever!

PWS

09-05-20

🏴‍☠️☠️🤮👎KAKISTOCRACY WATCH: NJ AILA Sues EOIR’s Malicious Incompetents To Stop Deadly ☠️☠️☠️🤮 In-Person Hearings

Laura Lynch

Laura Lynch
Senior Policy Counsel
AILA

Laura Lynch @ AILA writes:

I wanted to flag this lawsuit that was filed a few hours ago by AILA’s New Jersey Chapter seeking to stop in-person court appearances at the Newark Immigration Court. The attached complaint reveals the following:

“The Newark Immigration Court is no stranger to the devastating effects of COVID-19. The coronavirus spread through the court before it closed in March, and COVID-19 illnesses tragically caused the deaths of both a longtime private immigration attorney and a staffer at the immigration prosecutor’s office, as well as causing the serious illness of both a senior immigration prosecutor and a court translator. More recently, the head of Federal Protective Services at 970 Broad Street in Newark—the building where the Newark Immigration Court is housed—died from COVID-19.”

“Yet, despite the risks posed by the spread of COVID-19, and the actual serious illness and death it has already caused to people involved with the Newark Immigration Court, that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention (the so-called “non-detained docket”). Moreover, even though immigration law and regulations provide for immigration hearings to take place by videoconference—and the Executive Office of Immigration Review, which operates the nation’s immigration courts, has touted its use of such videoconference hearings—the Newark Immigration Court does not provide the option for attorneys or others to appear by videoconference for cases on the non-detained docket.”

The Associated Press wrote a short article about this lawsuit.

Unfortunately, the complaint hasn’t been posted on AILA’s website yet. I’ve been sharing the document using this google link:https://drive.google.com/file/d/1TTXt0c7dzflF9Kpvvpe–aeHbQvHbYoV/view.

Please let me know if you have any questions.

Thanks, Laura

Laura A. Lynch, Esq.

Senior Policy Counsel

Here’s a link to a courthouse news story also: https://www.courthousenews.com/immigration-lawyers-seek-to-halt-in-person-hearings-amid-covid-fears/amp/?__twitter_impression=true

They provide a link to the filing as well:

https://www.courthousenews.com/wp-content/uploads/2020/07/NJ.petition.220cv9748.pdf

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

It just keeps getting worse and worse. The malicious incompetents at DOJ/EOIR keep endangering lives in an out of their so-called “courts” while those supposedly responsible for “justice in America” let it happen. This is a “Third World Dictatorship-Style Meltdown” happening right here in our country.

How many will have to die or have their lives ruined before this dangerous and dysfunctional embarrassment to humanity is finally put out of its misery (not to mention the misery it brings to others).

This November, vote like your life depends on it! Because it does!

PWS

08-01-20

HERE’S MY ARTICLE FROM LAW360: “Justices’ Fleeting Unanimity In Free Speech Immigration Case”

https://www.law360.com/immigration/articles/1272443/justices-fleeting-unanimity-in-free-speech-immigration-case

Justices’ Fleeting Unanimity In Free Speech Immigration Case

By Paul Schmidt

Law360 (May 11, 2020, 6:09 PM EDT) —

Paul Schmidt

On May 7, the U.S. Supreme Court‘s so-called Bridgegate decision got the attention, but the decision released that day in U.S. v. Sineneng-Smith is also notable.

In a unanimous decision by Justice Ruth Bader Ginsburg, the court pummels a panel of the U.S. Court of Appeals for the Ninth Circuit for overreaching on a constitutional overbreadth issue not argued by the parties below.

Observers expecting a blockbuster resolution of the tension between the First Amendment and criminal sanctions for “inducing or encouraging” extralegal immigration undoubtedly were disappointed.

Nevertheless, I find three significant takeaways from the ruling in Sineneng-Smith.

First, an ideologically fractured court desperately seeks common ground on something relating to immigration enforcement.

Second, the judicial restraint preached by Justice Ginsburg in her opinion conflicts with the U.S. attorney general’s use of the immigration courts to advance his restrictionist policy agenda.

Third, and ironically, Justice Clarence Thomas’ concurring opinion calls not for judicial restraint, but solicits a conservative judicial assault on the overbreadth doctrine that generally protects individuals from government overreach.

Facts

Evelyn Sineneng-Smith, a California immigration lawyer, filed labor certification applications for clients to help them get U.S. green cards. She charged each client more than $6,000, netting $3.3 million.

Smith knew that particular path to a green card involving filing for labor certification and adjusting status without leaving the country had been eliminated by statute, except for those in the country on Dec. 21, 2000, who had applied for a labor certification before April 30, 2001.

Smith’s clients did not satisfy that grandfathering criteria. However, Smith apparently did not tell them that the applications they paid her to file could not lead to successful adjustments of status.

A criminal prosecution followed which included, but was not limited to, charges that Smith had unlawfully induced or encouraged her clients to reside in the U.S. in violation of law. Smith, represented by counsel, argued at trial that the criminal statute penalizing inducing or encouraging unlawful immigration did not apply to her specific situation of filing immigration applications for clients.

She also asserted that interpreting the statute to include her particular situation as a lawyer representing clients seeking immigration status would violate the right to petition and free speech clauses of the First Amendment, specifically as applied to her.

She did not claim that all applications of the criminal inducing or encouraging unlawful immigration statute were unconstitutional under the First Amendment.

A U.S. District Court for the Northern District of California rejected all of Smith’s defenses and convicted her on the inducing or encouraging charge, as well as some additional charges of filing false tax returns and mail fraud that were not contested by the time the case reached the Supreme Court.

Smith appealed her encouraging-or-inducing conviction to the Ninth Circuit.

Ninth Circuit Proceedings

On appeal, Smith advanced the same statutory and constitutional arguments, based on the specifics of her situation, that had failed at trial.

The Ninth Circuit panel basically pushed aside both Smith’s and government counsel. Instead, they appointed three amici — friends of the court — principally to argue the case. According to Justice Ginsburg, this essentially made bystanders out of counsel for the actual parties.

Even more egregiously says Justice Ginsburg, the panel reframed and restated the issues for the amici to address. Instead of the narrow issues argued by the parties on the specific facts of the case, the panel posited three new and much broader issues.

The first was “whether the statute of conviction is overbroad or likely overbroad under the First Amendment.”

Faced with a new theory of the defense suggested by the panel itself, Smith’s lawyer, who was allowed but not required to participate in the supplemental briefing by the amici, merely adopted the amici’s overbreadth argument without discussion.

The panel then overturned Smith’s conviction solely on the basis that the statute was overbroad under the First Amendment.

The solicitor general petitioned the court which took the case because it invalidated a federal statute on constitutional grounds.

The court reversed and remanded, instructing the panel to ditch the overbreadth issue and concentrate on the narrower issues relating to Smith’s specific conduct under the statute, as actually argued by the parties at trial and on appeal to the Ninth Circuit.

Analysis

Misleading “Togetherness”

The court’s unanimous rebuke of the panel below provides insight without much useful guidance. It probably could, and should, have been a two sentence, unsigned vacate and remand, referencing the court’s previous jurisprudence on the essential role of cases and controversies in Article III judging.

Notwithstanding some commentators touting the number of unanimous decisions, this court is riven by a deep ideological split between five conservative GOP-appointed justices moving sharply right and four moderate to liberal Democrat-appointed justices trying to hold the line on important individual rights in the face of government overreach.

Nowhere has this gap been more apparent than in the executive’s aggressive efforts to rewrite, and effectively annihilate, previous American immigration laws and human rights policies.

The court’s recent 5-4 decision vacating a stay in Wolf v. Cook County illustrates this. There, five conservative justices accepted the solicitor general’s invitation to interfere with litigation in the U.S. District Court for the Northern District of Illinois, involving the administration’s rewrite of the so-called public charge rules applicable to immigrants.

The majority’s failure to even explain its decision earned an unusually sharp rebuke from Justice Sonia Sotomayor. Unlike this case that involves one individual, the administration’s rule changes, green-lighted by Cook County, have been cited as deterring many individuals legally in the country from seeking medical advice in this pandemic.

So much for judicial restraint as a norm. Here, by contrast, the justices bridged the gap only by finding a common enemy in the panel below. Don’t expect this agreement to carry over into the merits of more controversial immigration issues.

Immigration Courts Don’t Follow This Standard

My colleagues, former mmigration judges Jeffrey Chase and Susan Roy, pointed me to the dissonance between the court’s admonitions here and the attorney general’s legislate-by-decision approach to the immigration courts.

Both former Attorney General Jeff Sessions and Attorney General William Barr eagerly have reached down into the immigration court system they respectively controlled to implement restrictive immigration policies by precedent decision without invitation from the actual parties to litigation.

In two of the best known instances, Sessions acted unilaterally to change established rules concerning domestic violence asylum claims for women and to eradicate nearly four decades of precedent allowing judges to administratively close low priority or dormant cases on their burgeoning dockets.

Notwithstanding their expressed concerns about uninvited judicial activism, the court has effectively overlooked the glaring operational and constitutional problems embedded in an immigration “court” system run by the chief prosecutor. Will they pay attention when future litigants raise this disconnect?

Justice Thomas’ Ironic Concurrence

Justice Thomas’ concurring opinion attacks the overbreadth doctrine and solicits future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

Right-wing activists like Thomas customarily harken back wistfully to the golden age of American jurisprudence when the exclusively white, male, nearly 100% Christian federal judiciary was perfectly happy to look the other way and bend the rules to favor ruling elites.

Those disfavored were often African Americans, women, children, the poor and others who weren’t part of the club. How would Justice Thomas himself have fared in the past world he longs to re-create?

Conclusion

The substantive constitutional issue unanimously ducked by the court might eventually reappear, particularly if Justice Thomas has his way. But, don’t expect repeats of the court’s manufactured harmony in more controversial aspects of the administration’s attacks on the rights and humanity of migrants, like, for example the Deferred Action for Childhood Arrivals case.

I also wonder if this court can continue ignoring the glaring constitutional deficiencies and clear biases in the current immigration court system, defects they would never accept from any Article III judges?

Paul Wickham Schmidt is an adjunct professor at Georgetown University Law Center. He is a retired U.S. immigration judge, and a former chair and judge at the U.S. Board of Immigration Appeals.

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

Many thanks and much appreciation to my good friends and “Round Table” colleagues Judge Jeff Chase and Judge Sue Roy for their ideas and contributions to this article.

Due Process Forever!

PWS😎

05-12-20

COMING ATTRACTION: Hear Round Table “Fearless Knightess” ⚔️🛡 Hon. Susan Roy On “NJ Insider — Politically Direct Podcast” — Thursday, April 30, @ 9:00 PM EDT!

Here’s the link:

http://www.insidernj.com/podcast/politically-direct-episode-92-guest-susan-roy-former-immigration-judge/

Podcast: Politically Direct Episode 92 With Guest Susan Roy, Former Immigration Judge

By Insider NJ | April 29, 2020, 12:45 pm

Coming up on Thursday Night April 30th and LIVE at 9:00PM, I welcome Former Immigration Judge Susan Roy to Politically Direct. We will discuss her time working in Federal Immigration Court, the challenges of Immigration Law, the current political climate, the impact of COVID-19 on current immigration cases and much more.

I am proud to partner with Insider NJ and host this weekly informative podcast.

Feel free to call in and chat with us during the program.

818-572-8032

Tell your family and friends about this upcoming episode.

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

Three cheers for Sue!

Due Process Forever!

PWS

04-20-20

ROUND TABLE MEMBER TAKES US INSIDE THE EOIR DISASTER IN NEW JERSEY!

Former Judge Sue Roy reports:

The [Elizabeth] court was open today (and has been for days) and they had already started hearings this morning, with detainees and others in the courtrooms and the holding areas, when 2 detainees tested positive for COVID-19. They frantically shut down the court.

The Court is inside the detention center, uses the same antiquated ventilation system, same entrance, same guards and facility employees, etc.

And last week EOIR was trying to force Newark Immigration Judges to cover in Elizabeth IN PERSON.

The callousness and disregard for their own staff, much less everyone else, is staggering.

Sue

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

Thanks for speaking out, my friend!

The mindless cruelty and bad judgment just “keeps on keeping on!”

PWS

04-08-20

N.J. STATE BAR SEEKS GOVERNOR’S INTERVENTION AFTER DOJ IGNORES PLEAS TO CLOSE UNSAFE N.J. IMMIGRATION COURTS!☠️☠️☠️☠️☠️

NDPA stalwart and Round Table Member Hon. Sue Roy sends this:

March 26, 2020

VIA EMAIL ONLY Hon. Phil Murphy Governor

State of New Jersey Office of the Governor P.O. Box 001

Trenton, NJ 08625

Dear Governor Murphy,

Re: The Closure of the Newark and Elizabeth Immigration Courts

NEW JERSEY STATE BAR ASSOCIATION

EVELYN PADIN, PRESIDENT Law Office of Evelyn Padin 286 First Street

Jersey City, NJ 07302 201-963-8822 • FAX: 201-963-8874 evelyn@lawjcnj.com

The New Jersey State Bar Association (NJSBA) is requesting that the Newark and Elizabeth Immigration Courts be closed immediately, in the interest of the health and safety of the residents of NJ and the country. In support of this request, the NJSBA asks you to consider the following:

NEWARK IMMIGRATION COURT:

On March 6, 2020, the Newark Immigration Court, located on the 12th floor of the Rodino Building, 970 Broad Street, Newark, NJ, was temporarily closed for the afternoon because an attorney who had been exposed to COVID-19 and who was experiencing symptoms was present in court.

On March 9, 2020, the Newark Immigration Court reopened, and remained open until March 18, 2020. During that period of time, literally thousands of respondents and their family members were required to appear at master calendar and individual hearings, along with their attorneys, attorneys from the Office of Chief Counsel, Court staff, interpreters, security guards and Immigration Judges.

It was later learned that a second private attorney and an interpreter have tested positive for COVID-19 after being in court on March 11, 2020. The attorney is quite ill. Approximately 70 other cases were heard that morning before the same Immigration Judge, who is currently under self-quarantine. That is only a fraction of the people who were present at court that day. Because of the volume of individuals who must appear at the Newark Immigration Court on any given day, the majority of individuals must wait together, sometimes for hours, in an extremely small waiting room, in which all attorneys, courts staff, interpreters, security guards and judges must also pass.

New Jersey Law Center • One Constitution Square • New Brunswick, NJ 0 8901-1520

732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • www.njsba.com

It was also learned that an attorney from the DHS Office of Chief Counsel, who was present in Court on March 13, has not only tested positive for COVID-19 but is currently in a medically induced coma in ICU fighting for his life. The entire staff of the Office of Chief Counsel, which is primarily located on the 13th Floor of the Rodino Building, has been placed under required quarantine for a period of two weeks.

As a result of this, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a directive on Twitter and Facebook stating that the Newark Immigration Court would be closed from March 18-April 10, 2020, and that all court filings would be considered timely filed on April 10, when the court reopened.

Last night, March 25, at 9:30 pm, EOIR announced via Twitter and Facebook that Newark Immigration Court would reopen starting TODAY, March 26. No further information was given to the public, or, notably, the Immigration Judges or the court staff. It has been clarified that the Newark Court has reopened for court filings only, because EOIR has now stated that any filings due during the previous days of closure would now be due on March 30, 2020.

Some members of the court staff are now required to be present to accept in-person filings at the court window, as well as to handle filings that have been mailed to the court. The Office of Chief Counsel remains closed under quarantine, and therefore cannot accept filings.

The reopening of the Newark Immigration Court, even for a limited purpose, is in clear violation of Executive Order 107. The functions of the Court at this time are non-essential, because the Court does not handle detained cases. Moreover, the reopening is putting Court staff in jeopardy of not only exposure to the virus themselves, but also of spreading it to others. The City of Newark is under a shelter-in-place restriction, and, this morning, the U.S District Court for the District of New Jersey just issued an order closing the Martin Luther King and Frank R. Lautenberg courthouses because several employees have confirmed positive COVID-19 tests. The courts are closed immediately and will remain closed through April 6, 2020.

It should be noted that the courthouses are located next door to the Rodino building, and the U.S. Attorney’s Office is in the Rodino Building. Staff, attorneys, and members of the public use the same parking facilities, elevators, and even cafeterias located in the buildings.

Therefore, for all of the above reasons, the Newark Immigration Court should be closed immediately and remain closed until its scheduled reopening date of April 10, at the earliest.

ELIZABETH IMMIGRATION COURT:

The Elizabeth Immigration Court is located at 625 Evans Street, Elizabeth, NJ, and is located in the same building as, and in close proximity to, ICE detainees. The Elizabeth Court handles detained cases and is currently open.

On March 13, 2020, a medical staff person who works in the detention center was presumed to have been exposed to COVID-19; this diagnosis was later confirmed. Moreover, because attorneys for the Office of Chief Counsel travel back and forth between the Elizabeth Immigration Court and the Detention Center, where there is an auxiliary OCC office, and the Rodino Building in Newark, the OCC in Elizabeth has been included in the mandatory, two-week quarantine. Numerous private and pro bono

attorneys also routinely appear in both courts, as do interpreters and ICE personnel.

One of the Elizabeth Immigration Judges has been out on leave; an Immigration Judge from Newark, whose husband had been quarantined but tested negative for the virus, is now handling the docket in Elizabeth.

Immigration attorneys are allowed to appear telephonically if they choose; court staff, judges, security guards, interpreters, and, of course, the detainees housed in Elizabeth are there in person. The Office of Chief Counsel is still under quarantine; their attorneys have been appearing telephonically.

On March 24, 2020, at 2:30 pm, EOIR announced, via Twitter and Facebook, that the Elizabeth Immigration Court was closing for the rest of the afternoon because they had received confirmation of “the presence of an individual with a test-confirmed Coronavirus diagnosis.”

The Elizabeth Immigration Court reopened the next day and remains open.

The Elizabeth Immigration Court hears cases for individuals who are housed at Elizabeth Detention Center, as well as at Essex and Hudson County Jails. The individuals housed at those jails are usually seen via tele video. However, a detainee and a senior staff person at Essex County Jail both have positive COVID-19 diagnoses and are experiencing serious symptoms. And ICE detainees at all three locations are engaging in hunger strikes because they are afraid of contracting the virus as well.

Moreover, on March 25, EOIR issued a requirement that all attorneys dealing with inmates in ICE detention centers and courts MUST bring their own personal protective equipment (PPE) in order to be allowed to enter the facilities. Therefore, either attorneys cannot adequately represent their clients, or they must obtain PPE at the expense of health care providers and first responders who desperately need this equipment.

The NJSBA recognizes that it is more difficult to close a court that handles detained cases, as that imposes a reduction of the individuals’ constitutional rights. However, the NJSBA believes that a short- term closure of two weeks, in order to ensure that anyone who has been exposed to COVID-19 does not spread the virus, even unwittingly, is extremely important to protect the health and safety of the individuals who are housed there, who work there, and who must report there, as well as the public at large.

The NJSBA would, at the same time, ask that the State confer with ICE regarding the release of any non-criminal or low-risk immigration detainees. This would further aid in slowing the spread of the virus, as well as protecting the individuals who work at the Elizabeth Immigration Court and Detention Center and would minimize significantly the numbers of detained cases on the court docket. Should ICE forbear from placing new detainees in custody within NJ facilities would also stem the spread of the virus to vulnerable inmate populations. Alternatives to detention, such as ankle-bracelets, or mandatory video or telephonic check-ins would help ensure that ICE’s mission is not curtailed.

It should be noted that the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA) and the American Federation of Government Employees #511 (AFGE/ICE Professionals Union) issued a joint statement on March 22, 2020, asking for the nationwide closure of all immigration courts across the country.

Immigration attorneys, immigration courts staff, and immigration prosecutors are literally having to

make life and death decisions every day because of EOIR’s callous disregard for the health and safety of its employees, immigrants, anyone who must come into contact with the courts, and the

public. Accordingly, NJSBA is asking you to close the NJ immigration courts immediately to preserve the health and safety of the residents of NJ.

Respectfully submitted,

Evelyn Padin, Esq. President

cc: Senator Robert Menendez Senator Cory Booker

Matthew Platkin, Esq., Counsel to the Governor

Susan Roy, Esq., Chair, NJSBA Immigration Law Section Angela C. Scheck, Executive Director

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

Thanks, Sue, for all you do!

To be honest, I’m not sure that a State Governor has authority to close down a Federal Office, even in times of emergency. But, this absurd, yet deadly, situation shows the arrogant disrespect for human life, common sense, and basic decency of Barr and his EOIR toadies.

Normally, you would expect cooperation, coordination, and support from the Feds in time of a health emergency. In the age of Trump and his kakistocracy, not so much. After all, you’re dealing with a regime headed by a maliciously incompetent dude who couldn’t wait to start undermining the best advice of his own doctors and nearly all health care professionals in the U.S. Bad things happen to a country that empowers a kakistocracy!

PWS

03-27-20

KILLER “COURTS” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻 — “Malicious Incompetence” Or “Criminal Negligence” @ EOIR? — Experts Chase & Dzubow Rip Into EOIR/DOJ Officials For Needlessly Endangering Lives! — Kakistocracy Turns Deadly!

https://www.jeffreyschase.com/blog/2020/3/26/like-firing-randomly-into-a-crowd

Hon. Jeffrey S. Chase in Jeffrey S. Chase Blog:

Like “Firing Randomly Into a Crowd”

On March 23, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a sua sponte order in a case pending before it, ordering the Petitioner’s immediate release from detention “in light of the rapidly escalating health crisis, which public health authorities predict will especially impact immigration detention centers.” In taking such action, the court used its authority to protect those under its jurisdiction.This is what judges and courts are supposed to do.

In contrast, the leadership of EOIR, the agency which oversees our nation’s immigration courts, sees its mission quite differently. With shocking indifference to those subject to its authority, including its own employees as well as members of the public, EOIR’s present leadership seeks only to please its Department of Justice masters, much like a dog rolling over or playing dead to earn a pat on the head from its owner.

As we all began to comprehend the seriousness of the coronavirus pandemic weeks ago, EOIR refused to close immigration courts out of fear of sending a message contrary to Trump’s statements that the health crisis was a “hoax.” Christopher Santoro, the coward holding the title of Acting Chief Immigration Judge, ordered court staff to remove CDC-issued advisories on ways to help stop the spread (i.e. by not shaking hands) on the grounds that the immigration judges lacked the authority to hang such notices in their own courtrooms. In defense of his stupidity, Santoro offered the age-old excuse of the weak: that he was only following orders.

As the virus spread, and people began dying, EOIR kept its courts open far longer than it should have. An ICE attorney who represented the government throughout a crowded Master Calendar hearing in Newark, NJ on March 13 is presently in a coma in intensive care with COVID-19 fighting for his life. I’ve heard that an immigration judge in one of NYC’s immigration courts is presently ill with COVID-19 and pneumonia.There have been additional reports of others at immigration detention centers testing positive.

As cities locked down and sheltered in place, EOIR finally agreed to postpone non-detained hearings, but only until April 10. Hearings in detained courts continue to go forward.And for some reason, non-detained courts that were closed and should have remained so were reopened for the filing of documents only, with such openings announced by nighttime tweets. On Wednesday night, EOIR tweeted that several courts would “open” the next morning, without explaining whether that meant hearings that had previously been announced as postponed would instead go forward the following morning.As this occurred after business hours, there was no one to call for clarification. In fact, the opening was only to file documents.EOIR’s leadership (for want of a better term) has decided that all court filings due during the court closings are now due on March 30.Many lawyers in NYC have no way to meet this deadline, as their office buildings have been locked in compliance with the state’s shutdown order.

In order to accept these filings, EOIR is forcing court clerical staff to leave the safety of their homes, disobey the state PAUSE directive and expose themselves and their family members to possible infection in order to report to work. In NYC, traveling to work for most employees requires riding trains and buses, further increasing the risk of exposure.As schools are closed, how those court staff with child care needs will manage in a time requiring social isolation is unknown.

Furthermore, not all judges hearing detained cases are granting continuances despite the crisis. EOIR has not informed judges that the present crisis exempts them from meeting their performance metrics, which requires all judges to complete 700 cases per year, and to finish 95 percent of cases on the day of their first-scheduled individual hearing. Newly hired judges, who are on probation for two years, are therefore being forced to choose between their own job security and the health and welfare of all those who appear in their courts.

In recent days, EOIR has been besieged with letters from health care professionals, law professors, and various legal and advocacy organizations containing strong arguments to do what the Ninth Circuit had done instinctively and without having to be asked. In one of these letters, attorney George Terezakis, writing on behalf of the New York-based Association of Deportation Defense Attorneys (on whose Board of Directors I sit), described how the mother of a detained respondent who traveled from her home in Long Island to the court in Lower Manhattan by commuter train and subway to file a document for her son’s hearing was later diagnosed with the coronavirus. Terezakis continued: “Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees’ family members will foreseeably and inevitably kill someone…keeping the courts open ensures continued, needless infection, serious illness and death…”The letter continued: “This is a real crisis requiring real leadership to take decisive action that will place the safety of those under its jurisdiction ahead of other concerns. There is no escaping the inevitable consequences of inaction.”

As for Santoro, “I was only following orders” has historically fared poorly as a defense. Someone whose name is preceded by the title “Chief Immigration Judge” is required to stand up and take appropriate action in a time of crisis, and accept the consequences of such action. And for those in EOIR’s leadership chain who refuse to do so, it is incumbent on all of us to do everything in our power to ensure that they will be held fully accountable for their inaction under the next administration.

Copyright 2020 by Jeffrey S. Chase. All rights reserved. Reprinted with permission.

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

https://www.asylumist.com/2020/03/26/incompetence-and-reckless-at-eoir-endanger-lives/

Jason Dzubow writes in The Asylumist:

The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

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

Thanks, Jeffrey, Jason, and Sue, my friends, for “telling it like it is!” Now is not the time for “go along to get along” bureaucratic responses.
Unfortunately, attorneys and court staff might now start paying with their lives for EOIR’s inexcusable two-decade failure to implement a functional e-filing system.
As one of my Round Table colleagues said, “Since when is a late night tweet ‘official notice?’” Don’t remember anything about “notice by tweet” in 8 CFR!
As I noted previously, J.R. and his tone-deaf, complicit Supremes effectively repealed the “Bivens doctrine,” holding Federal officials responsible for “Constitutional torts” committed outside the scope of their official duties. They thereby essentially gave rogue Federal officials a “license to kill,” at least where the victim was merely an unarmed Mexican teenager. It appears that Barr, McHenry, and others in the “chain of command” are trying out their new “licenses.” They had better hope that J.R. & Co’s “willful blindness” and unwillingness to stand up for lives and Constitutional rights extend even when American citizen lawyers and court clerks are among the casualties.
Not surprisingly, EOIR’s contempt for due process and the lives of asylum seekers, families, children, and other migrants has expanded to include the lives of their own employees and members of the public forced to deal with this godawful, unconstitutional mess.
When the reckoning comes, we should not forget the negligent complicity of Congress as well as the Article III Courts for allowing the life-threatening, dysfunctional, unconstitutional mess that EOIR has become continue to operate and to threaten the health, safety, and welfare of all Americans.

PWS

03-27-20

Here’s a link to the letter:

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

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ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!

By Hon. Sue Roy

Former U.S. Immigration Judge

Exclusive to Courtside

Oct. 8, 2020

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