Category: Article I Court

⚖️🧑🏽‍⚖️ EOIR WATCH: GOOD NEWS FROM FALLS CHURCH — “PRACTICAL, PROGRESSIVE SCHOLAR” JUDGE ELIZABETH YOUNG (SF) PROMOTED TO ASSISTANT CHIEF IMMIGRATION JUDGE!

Hon. Elizabeth Young
Honorable Elizabeth Young
Assistant Chief Immigration Judge

My good friend Professor Alberto Benitez @ GW Immigration Clinic reports:

Friends,

I’m pleased to share the news that our friend, colleague, and alum Elizabeth L. Young was appointed an Assistant Chief Immigration Judge in the Executive Office for Immigration Review of the US Department of Justice. While at GW Judge Young was a student in my Immigration Law I course, a student-attorney in the Immigration Clinic, and later interim director of the Immigration Clinic during my leave. The press release link follows.

https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios

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

Many congrats to Assistant Chief Judge Young. Significantly, Judge Young has a 72% asylum grant rate that has remained consistent even during the Trump-era meltdown of due process and institution of the “asylum denial culture” and anti-asylum precedents and procedures in the Immigration Courts. That assault on justice, humanity, and the rule of law drove a once higher than 50% nationwide grant rate down to an artificially-low and intentionally unfair 33%. 

As all NDPA warriors know, asylum adjudication at EOIR over the past four years has become a deadly national disgrace, as yet largely unaddressed by Judge Garland, whose dozens of inexplicably lackluster appointments to the Immigration Courts to date have drawn ire and fire from human rights experts. 

Assistant Chief Judge Young immediately becomes one of the few “beacons of due process, best practices, and proper asylum adjudication” in a leadership position at EOIR. Hopefully, there will be more to follow! Make no mistake, EOIR is in “meltdown mode.”

🇺🇸Congrats again, and Due Process Forever!

PWS

08-23-21

Related posts:

  1. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  2. 😎🗽⚖️ OF COURSE, GREAT LAWYERING MAKES A DIFFERENCE IN IMMIGRATION COURT! — Only Nativists & Former Director McHenry Would Bogusly Claim Otherwise! — Another “Real Life Success Story” From Professors Benitez & Vera @ The GW Law Immigration Clinic! — Garland’s DOJ “Goes Molasses In November” On Improving Access To Counsel & Elevating The “Pro Bono Experience!”
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. ⚖️🧑‍⚖️☠️ SEN. SHELDON WHITEHOUSE (D-RI) HIGHLIGHTS RIGHT’S SUPREME TAKEOVER! — My Thoughts On “Agency Capture” By Nativists @ EOIR Under Garland!

☠️ 9TH CIR. PELTS BIA WITH MORE ROTTEN TOMATOES 🍅! — Attempt To Deport Refugee Woman Entitled To Asylum, Withholding & CAT Thwarted! — BIA Wrongly Conflates Registered Nurse With Taxi Driver In Insane Misogynistic Bid To Return Mexicana Refugee To Death!⚰️👎🏽

Woman Tortured
“Taxi to Falls Church, anyone?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

 

Plancarte Sauceda v. Garland, 9th Cir., 08-20-21, (Panel = Fletcher, Watford, Collins; Opinion = Fletcher)

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

Court staff summary:

. . . .

Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”

Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of

4 PLANCARTE SAUCEDA V. GARLAND

torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.

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

Welcome to the “any reason to deny culture” at Garland’s EOIR! 

In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!

Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge? Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning! 

This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!

  • Immigration Court  — Failure
  • BIA — Failure
  • OIL — Failure
  • Garland — Failure

And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees! 

Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!

Vallerye Allyn Anderson
Vallerye Allyn Anderson ESQ
Sacramento, CA
PHOTO: LexisNexis

🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮

PWS

08-22-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

THE GIBSON REPORT — 08-16-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland DOJ Continues To Defend Miller’s White Nationalist Agenda In (Far Too) Many Cases, Private Prisons Continue To Cash In On Biden’s Continuation Of Trump/Miller “New American Gulag!”

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

NEWS

 

US curtailing evacuation flights of Afghans to US for now to prioritize Americans

CNN: As of last Thursday, 1,200 Afghans and their families had been evacuated to America… According to sources familiar with the matter, Biden national security officials told senators during a briefing on Afghanistan Sunday that there are as many as 60,000 Afghans who could potentially qualify as SIV holders or applicants, P1/P2 refugees, or others like human rights defenders and could need evacuation. See also ‘Forget the visas’: The scramble is on to save Afghan partners as Taliban close in; In desperation, U.S. scours for countries willing to house Afghan refugees.

 

Federal judge orders Biden administration to reinstate ‘Remain in Mexico’ policy

USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.

 

U.S. to expand online asylum registration amid ‘unprecedented’ border arrivals

Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.

 

July was busiest month for illegal border crossings in 21 years, CBP data shows

WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.

 

In Texas, a Quarantine Camp for Migrants With Covid-19

NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.

 

Biden railed against Trump’s immigration policies, now defends them in courts

Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.

 

How a Private Prison Company Profits from Biden’s Broken Immigration Pledge

Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

 

Mexico has pushed hundreds of migrants expelled from the U.S. on to Guatemala, stranding them in a remote village far from their homes

WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.

 

ICE to avoid arrest and deportation of undocumented victims of crime under new policy

CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.

 

Some 100,000 Green Cards at Risk of Going to Waste in Covid-19 Backlog

WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.

 

Death toll in Haiti earthquake climbs to 1,297 as search continues for survivors

CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.

 

Hochul’s Past Push to Arrest Immigrants Resurfaces as She Readies to Replace Cuomo

TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.

 

LITIGATION/CASELAW/RULES/MEMOS

 

BIA Dismissed Appeal After Finding NACARA Grant Bars Applicant from Applying for Cancellation

AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)

 

3rd Circ. OKs NJ AG’s Limit On Sharing Immigration Info

Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.

 

CA4 Upholds BIA’s Asylum Denial to Former Member of MS-13 Gang in El Salvador

AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)

 

CA5 Says It Lacks Jurisdiction to Review BIA’s Prima Facie Hardship Determination Pursuant to INA §242(a)(2)(B)(i)

AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)

 

CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia

AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)

 

CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG

AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)

 

CA8 Finds BIA Did Not Err in Excluding Petitioner’s Mental Health Issues from PSC Analysis

AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)

 

8th Circ. Grants Appeal For U Visa Seeker And Daughters

Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.

 

CA9 Holds That BIA Applied Wrong Burden of Proof to Petitioner’s Adjustment of Status Application

AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)

 

CA9 Remands for BIA to Consider Petitioner’s Social Group Claim Based on His Perceived Gang Membership

AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)

 

CA9 Holds That Convictions Under Hawaii’s Fourth Degree Theft Statute Are Not Categorically CIMTs

AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)

 

CA9 Marijuana Conviction Costs Man Deportation Relief

Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.

 

CA11 Finds Florida Conviction for Being a Felon in Possession of a Firearm Is Not a “Firearm Offense” Under the INA

AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)

 

DOJ’s Block Of Texas’ Migrant Transport Order Extended

Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.

 

National Security Vetting Is Said To Illegally Delay Green Card

Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.

 

ICE Releases Updated Guidance Regarding Civil Immigration Enforcement Actions Involving Noncitizen Crime Victims

AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.

 

USCIS Provides Guidance on Afghan Special Immigrant Parolee and LPR Status

AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.

AILA Doc. No. 21081344

 

USCIS Temporarily Extending Validity Period of Form I-693

AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.

 

Executive Order Suspending Entry of Certain Persons Contributing to the Situation in Belarus

AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)

 

Presidential Memo on Deferred Enforced Departure for Hong Kong

AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

Monday, August 16, 2021

Sunday, August 15, 2021

Saturday, August 14, 2021

Friday, August 13, 2021

Thursday, August 12, 2021

Wednesday, August 11, 2021

Tuesday, August 10, 2021

Monday, August 9, 2021

 

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

Thanks, Elizabeth!

The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:

“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”

I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.

More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).

Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!

Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!

Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!

Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” of  systemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not! 

So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!

Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.” 

But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.  

I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career! 

Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all! Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!

Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.

Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs. 

We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!

The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!

Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way! 

It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!

The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.

Here’s the essence:

President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.

But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.

Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought —  or, in this case, worse!

Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrant Administration, is a starting point. 

But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”

Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!

Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much! 

Grim Reaper
Many who helped put Biden and Garland in office believed that “Americans Gulags” and “EOIR StarChambers” would be a thing of the past by now. But, outrageously, they are still alive, well, and thriving in the Biden Administration, even being expanded and defended by Garland’s team of morally and ethically challenged DOJ lawyers. “The Inspiring Words & Deeds of AG Merrick Garland on Immigrant Justice” would fill a book about as large as “The Combined Wisdom & Humanity of Donald Trump & Stephen Miller.”  Oh well, at least the Grim Reaper must be happy with the way things are going!
Image: Hernan Fednan, Creative Commons License

 

😎Due Process Forever! Star Chambers and the New American Gulag, Never!

PWS

08-18-21

Related posts:

  1. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!
  2. ⭐️⭐️⭐️⭐️⭐️⚖️🗽🇺🇸FORMER DEPUTY AG DON AYER, JUDGE MIMI TSANKOV AMONG “HEADLINERS” AT TIMELY UPCOMING NY CITY BAR ASSN. EVENT: “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” — Register Now, Right Here!
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

🤮⚖️ NO JUSTICE @ “JUSTICE,” AS “DENIAL CULTURE” CONTINUES @ EOIR: 8TH CIR. BONKS BIA FOR FAILING TO FOLLOW PRECEDENT: Their Own & Circuit — Issue: Continuance for U Visa Application — Gonzales Chechaluno v. Garland!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports on LexisNexis Immigration Community: 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca8-on-continuances-gonzales-chechaluno-v-garland#

Gonzales Chechaluno v. Garland

“In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. … We grant the petition for review, vacate the BIA’s May 2020 order, and remand for proceedings consistent with this opinion.”

[Hats off to David L. Wilson and amici Immigrant Law Center of Minnesota, ASISTA Immigration Assistance Project and National Network To End Domestic Violence!]

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

Folks, all of this nonsense, delay, needless litigation, and remarkable legal/judicial incompetence was for the “purpose” of denying a well-deserved continuance to a U visa applicant — what should have been about a 5-minute positive adjudication, at max. No wonder the Federal Courts are clogged, the EOIR backlog grows, and the system has lost all respect and credibility!

I wish that Lucas Guttentag, Lisa Monaco, Vanita Gupta, and Merrick Garland would explain to all of us what is the purpose of an “expert tribunal” that lacks expertise, fundamental legal skills, judicial independence, moral courage, and common sense, as well as the backbone to have stood up to folks like Sessions and Barr (see, e.g., the Census Bureau career civil servants for stark contrast). 

EOIR needs, among other things, changes at the top, real courageous progressive leadership, and a new, well-qualified, progressive, practical, expert BIA that puts due process and fair adjudication above all else. The practical experts are out there! Lucas knows exactly who should be leaders, role models, and appellate judges at the BIA! He knows that EOIR is the one critically important Federal Judiciary that can be transformed in the short run into a progressive, due-process-focused, “model judiciary!” Every day wasted in making the necessary changes in personnel and procedures is a life-changing, life-preserving opportunity wasted!

So, what’s the delay? Why is this nonsense, injustice, and waste of resources continuing nearly seven months into the Biden Administration? What’s with the continuing, due-process-denying, corner-cutting, sophomoric “denial quotas” for EOIR “judges” that produce wasteful, unjust “garbage adjudications” like this litigation exemplifies?

Lucas Guttentag
Lucas Guttentag
Senior Counselor to the Deputy Attorney General

It shouldn’t be this hard to get long, long overdue, well-documented, common sense, readily achievable changes at EOIR! It shouldn’t be this hard for asylum seekers and other migrants, as well as their long-suffering representatives, to get the due process and fair and impartial adjudication that is their absolute right under the Due Process Clause of the Fifth Amendment to our Constitution!

🇺🇸Due Process Forever!

PWS

08-14-21

Related posts:

  1. EOIR WRONG AGAIN: BIA’s Attempt To Limit Its Own Jurisdiction To Grant Waivers Thwarted By 4th Cir.  — Jiminez-Rodriguez v. Garland
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

⚖️🗽PROFESSOR JILL FAMILY IN YALE JOURNAL ON REGULATION — Puncturing The Sovereignty Myth — “The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.”

Professor Jill Family
Professor Jill Family
Widener Law Commonwealth
PHOTO: Widener Law

https://www.yalejreg.com/nc/we-have-nothing-to-fear-but-sovereignty-fear-itself/

. . . .

Additionally, the status quo does not guarantee that no one will be present in the United States without permission.  In fact, with the plenary power doctrine in place, there are approximately 10 million individuals living in the United States without permission.  (And most of them crossed the border legally, entering the territory with legal authorization for some period that expired.)  Despite this, the United States continues to exist.  Noncitizens, however, are denied more independent adjudicators under the false idea that by denying them we somehow protect the nation’s sovereignty.  These are complex lives interwoven with our communities, businesses, schools, and the lives of US citizens.  The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.

Perhaps the sovereignty fear is shorthand for something else?  Is it an objection to multiculturalism?  The reflection of a desire to give the president power to thwart statutory immigration law?  Or perhaps courts and policymakers have been invoking the phrase “plenary power” for so long that it has become an out of date, knee-jerk reaction.

Sovereignty and foreign policy will remain intact even with more independent immigration adjudication.  The sovereignty fear is a distraction from what really needs our attention; we should not let it stop us from providing fair process.

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

The threat to our democracy hardly comes from those seeking legal refuge to save their lives or to find meaningful work to support their families and contribute to society.  A more robust and fair legal immigration system would assist in identifying the relatively small percentage of migrants who seek to do us harm. 

No, the bigger threat comes from GOP neo-fascist insurrectionists and their spineless political enablers who actively seek to undermine our democracy with lies and White Nationalist racism. 

In a more functional system, Professor Family and those like her who understand and are committed to the “big picture” of American democracy and equal justice for all would be the Appellate Immigration Judges and Article III Judges — jurists ready and willing to stand up to Executive abuses of authority! The Immigration Courts should be the “starting place” for restoring and reinforcing American democracy. Does the Biden Administration have the vision and guts to make it happen?

🇺🇸Due Process Forever!

PWS

08-06-21

Related posts:

  1. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

GIBSON REPORT — 08-02-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

ALERTS

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

NEWS

 

DHS Announces Registration Process for Temporary Protected Status for Haiti

USCIS: Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from Aug. 3, 2021, through Feb. 3, 2023. Haiti TPS applicants are eligible to file Form I-821 online.

 

The Senate Has Confirmed The First Woman and First Person of Arab And Mexican Descent To Direct US Citizenship and Immigration Services

Buzzfeed: The agency has not had a Senate-confirmed leader in more than two years, even though it’s integral to the immigration system.

 

Immigration Court Cases Jump in June 2021; Delays Double This Year

TRAC: The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million.

 

U.S. Can Expedite Removal of Migrant Families, Biden Administration Says

NYT: After a fast-tracked screening at the border, the United States can turn back families it determines do not qualify for asylum. Immigration advocates say the decision denies due process. See also U.S. expected to keep border expulsions policy as Delta variant cases surge.

 

Processing delays leave unused slots, “wasted” green cards

ImmProf: A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.

 

ICE May Have Deported as Many as 70 US Citizens In the Last Five Years

AIC: All told, available data shows that ICE arrested 674 potential U.S. citizens, detained 121, and deported 70 during the time frame the government watchdog analyzed.

 

Biden signals support for Democrats’ plan to advance immigration changes unilaterally, via a budget bill.

NYT: Mr. Biden said on Thursday night that White House staff were “putting out a message right now” that “we should include in the reconciliation bill the immigration proposal.”

 

Biden releases 21-point immigration plan amid bipartisan criticism

Hill: Although the document is deeply critical of the Trump administration, it leads with border management, relegating the Biden administration’s “root causes” initiative to the last section.

 

These immigrants have one shot to come to the US. But Biden has to act.

Vox: [D]iversity visa lottery winners who applied for visas amid the Covid-19 pandemic now risk losing their opportunity to come to the US — in part because the State Department has continued the Trump-era policy of deprioritizing their applications.

 

32 Children Who Were Deported To Guatemala Last Year In Violation Of A Court Order Have Yet To Be Brought Back

Buzzfeed: Thirty-two unaccompanied immigrant children who were deported to Guatemala despite a judge’s order have yet to be brought back to the US to apply for asylum, six months after the government admitted it was in the wrong. Now, immigration advocates are ramping up pressure on the Biden administration to speed up the process.

 

U.S. attorney general tells Texas to rescind immigrant COVID-19 order

Reuters: Garland’s letter comes just a day after Abbott signed the order, which states that “no person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants” who have been detained by federal immigration officials for crossing the border.

 

New law will effectively end immigrant detention in Illinois

AP: Unless there’s a legal challenge or other exception, ICE’s options are to either transfer current detainees in Illinois to other states or release them.

 

The IRS erroneously rejected child tax credit payments for some families with an immigrant spouse

WaPo: “The IRS is aware some taxpayers who filed tax returns with ITIN numbers did not receive their child tax credit payment for July. We have worked expeditiously to correct this issue and these taxpayers will start receiving payments in August. All impacted taxpayers will receive their July payment.”

 

LITIGATION/CASELAW/RULES/MEMOS

 

Advance Copy: USCIS Notice of Designation of Haiti for TPS

Advance copy of USCIS notice announcing the designation of Haiti for Temporary Protected Status for 18 months, effective 8/3/21 through 2/3/23. The notice will be published in the Federal Register on 8/3/21. AILA Doc. No. 21073002

 

EOIR Stops Using “Alien” PM 21-27

Alien->Respondent, applicant, petitioner, beneficiary, migrant, noncitizen, or non-U.S. citizen;

Undocumented alien or illegal alien->Undocumented noncitizen, undocumented non-U.S. citizen, or undocumented individual;

Unaccompanied alien child->Unaccompanied noncitizen child, unaccompanied non-U.S. citizen child, or UC.

 

BIA On Tenn. Statutory Rape: Matter Of Aguilar-Barajas

Lexis: Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) (1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). (2) The Supreme Court’s holding that a statutory rape offense does not…

 

8th Circ. Won’t Nix Deportation Under Child Abuse Rule

Law360: The Eighth Circuit refused on Thursday to review a Honduran man’s bid for deportation relief reserved for victims of child abuse, saying the government had discretion to decide he didn’t deserve exemption because of his criminal history.

 

Split 9th Circ. Denies Deportation Review Of Vague Conviction

Law360: A split Ninth Circuit panel denied a Mexican woman’s petition for review of her deportation, which was previously blocked due to the ambiguous nature of her drug conviction, citing a recent U.S. Supreme Court ruling that an unclear conviction alone cannot save an applicant’s case.

 

CA9 On CIMT, Divisibility, Categorical Approach: Maie V. Garland

Lexis: Maie v. Garland “Maie’s petition contends that his petty theft convictions are not categorically CIMTs. The government’s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie’s argument was not waived. Because Maie’s argument presents an issue we have yet to address in a published opinion, we ordered supplemental…

 

CA9 On Burden Of Proof: Romero V. Garland

Lexis: Romero v. Garland “Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance of the evidence” burden from 8 C.F.R. § 1240.8(d) applies. … [W]e remand for the BIA to reconsider whether Romero met his burden to show by…

 

New Birthright Citizenship Rules End LGBTQ Mom’s Suit

Law360: An LGBTQ American expat is closing down her lawsuit seeking to obtain citizenship for her daughter born overseas, following a policy change from the Biden administration that allowed the child to secure a passport even though she’s not biologically related to a U.S. citizen.

 

United States Files Lawsuit Challenging Texas Governor’s Executive Order Targeting Migrant Transportation During COVID-19

AILA: The United States filed a lawsuit in federal district court against Texas and its governor, Greg Abbott, alleging that the governor’s 7/28/21 executive order relating to the transportation of certain migrants during the COVID-19 pandemic is unlawful. (United States v. Texas, et al., 7/30/21) AILA Doc. No. 21080239

 

Biden administration sued by ACLU over migrant expulsions

Politico: The American Civil Liberties Union on Monday announced it will resume a lawsuit against the Biden administration to force an end to the use of a provision of U.S. health code known as Title 42 to expel migrant families arriving at the border.

 

DHS Issues Statement on Expedited Removal Flights for Certain Families

AILA: DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras. AILA Doc. No. 21080231

 

DOS Announces Priority 2 Designation for Certain Afghan Nationals and Their Eligible Family Members

AILA: DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation granting U.S. Refugee Admissions Program access. Notice outlines eligibility. AILA Doc. No. 21080240

 

USCIS Announces Opening of New Asylum Office in Tampa, Florida

AILA: USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.AILA Doc. No. 21080238

 

DHS Semiannual Regulatory Agenda

AILA: DHS published its semiannual regulatory agenda providing a summary of projected regulations, existing regulations, and completed actions of DHS and its components. (86 FR 41226, 7/30/21) AILA Doc. No. 21080237

 

RESOURCES

 

EVENTS

 

 

ImmProf

Monday, August 2, 2021

Sunday, August 1, 2021

Saturday, July 31, 2021

Friday, July 30, 2021

Thursday, July 29, 2021

Wednesday, July 28, 2021

Tuesday, July 27, 2021

Monday, July 26, 2021

 

 

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

Thanks, Elizabeth!

Notable:

  • Immigration Court backlogs continue to mushroom as Garland to date has failed to take the aggressive measures needed and recommended to slash the docket by getting so-called “non-priority” cases off the docket (see, e.g., “Chen/Moskowitz proposal”) and bringing in more “progressive practical scholar judges” who know how to complete cases without compromising due process; 
  • Biden’s announced support for “immigration legislation by reconciliation” might be the best shot for an Article I Immigration Court — is it an “idea whose time has finally come” as Judge Dana Leigh Marks, long-time Article I advocate, said recently;
  • Biden Administration mindlessly chooses to go to war with ACLU and human rights advocates on continued abuse of Title 42 to suspend asylum at the border (why not instead enlist these experts to restore a functioning asylum system at the border?);
  • ICE evidently has been deporting U.S. citizens, and not just “one or two;”
  • Circuits continue to “ding” BIA on basics like standard of proof, categorical approach;
  • Lucas Guttentag arrives on the scene @ DOJ not a moment too soon  — but he’ll need lots of expert help on the inside to “right this sinking ship;”
  • Haste makes waste once again, as Gov. drags feet on returning 32 illegally removed children, spurring yet more unnecessary litigation (what about getting it right the first time around? — saves time and resources, also lives!);
  • https://lawprofessors.typepad.com/immigration/2021/07/lets-call-the-border-crisis-what-it-is-another-big-lie-from-the-right.html is also a “good read.” It seems pretty obvious, as many of us have been saying over and over, that having no legal system for screening and admitting refugees would add to the number of apprehensions and illegal entries — what other choice do desperate refugees have under the dysfunctional system maliciously created by Trump and mindlessly and illegally being maintained by Biden? Blaming the “victims” for our Government’s own intellectually dishonest, scofflaw, and immoral actions is a particularly cowardly thing to do! After nearly seven months in office (and over two months to prepare after the election) there is no excuse for the Biden Administration’s failure to have in place a fair and efficient asylum system, staffed by experts and better IJs who understand asylum and protection laws and are willing and well-qualified to grant relief to the deserving! Properly screening and establishing an orderly, fair adjudication system, with the assistance of NGOs and legal aid groups across the nation, would take pressure off of border communities. It would also allow qualified asylum seekers to become legal residents and begin fully contributing to our society and economy. Almost all experts, economists, and demographers say we need more legal immigration. Here it is staring us in the face; but, our Government wastes time and resources futilely trying to deter and expel folks who can help us out (while saving their own lives — a “win-win”)!

🇺🇸Due Process Forever!

PWS

08-05-212

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!
  4. THE GIBSON REPORT — 06-21-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Lots Of Interesting Items Under “Top News,” Some Good, Some Not So Much!

⚖️🗽👩🏽‍⚖️ASSOCIATE DEAN STACY CAPLOW @ BROOKLYN LAW ON CYRUS MEHTA BLOG — Our Immigration Courts Are Sinking — Can Lucas Guttentag Lead The Transformational Practice & Culture Changes Necessary to Save Them? — “[O]ne of the two obvious source of experienced immigration attorneys—immigrant advocates—is barely represented [among the many Immigration Judges selected over the past two decades.]”

Stacy Caplow
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law
PHOTO: Brooklyn Law website

http://blog.cyrusmehta.com/2021/08/the-sinking-immigration-court-change-course-save-the-ship.html

Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]

No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.

. . . .

Is there a life preserver on this sinking ship?  Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]

Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.

Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.

Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.

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

Read the complete article at the link.

I just hope that Stacy and Cyrus have sent copies of this article to Lucas, Lisa Monaco, Merrick Garland, Vanita Gupta, Kristen Clarke, and the Chairs of the House and Senate Immigration Subcommittees! 

Anti-immigrant, anti-asylum, misogynist culture (actively promoted by Sessions and Barr), biased and clearly defective judicial selection procedures, and the resulting lack of practical scholarship and human rights expertise are festering problems at EOIR. They must be solved now! 

The virtual exclusion of progressive practical scholars and advocates — essentially, the best and brightest — from the “21st Century Immigration Judiciary” has been both systematic and intentional. Disturbingly, the Obama Administration produced results only marginally different from Bush II and Trump!

That’s why many of us were so shocked and outraged when Judge Garland continued to “honor” fatally flawed, biased, and exclusionary hiring practices by his predecessors. 

Culture also plays a role in creating a biased judiciary. Why would a talented progressive expert, particularly a women of color, want to serve in a “bogus” judiciary that basically furthers racist narratives and myths, demeans women and minimizes their persecution (probably the most significant persecuted group in the world right now), and where the AG publicly slanders courageous private advocates while treating his “personally owned judges” like enforcement stooges.

The BIA has been “inflated” back to its “Schmidt-era” 23 Appellate Judges, after Ashcroft’s transparent “purge” cut the number to an unworkable 12 to remove the liberal judges (who were in the minority anyway). Yet, for Pete’s sake, there hasn’t been an outside appointment to the BIA since the Clinton Administration — more than two decades ago! Totally inexcusable.

And, this lack of outside expertise is a primary reason why EOIR is in deep trouble that threatens the stability of our entire justice system and democracy itself. A number of the existing BIA Members were selected NOT because of their demonstrated reputations for fairness, scholarship, respect, and timeliness, but because of their notoriety for denying almost every asylum case that came before them.

Here’s an excerpt from a letter that SPLC court observers sent to then Director Juan Osuna in 2017 describing the in-court bias of two Immigration Judges sitting in Atlanta:

In one hearing, an attorney for a detained respondent argued that his client was neither a threat to society nor a flight risk. 19 In this hearing, IJ Cassidy rejected the respondent’s request for bond, stating broadly that “an open border is a danger to the community.” He then analogized an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let that person in. The attorney disagreed with IJ Cassidy, who then responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” The attorney again disagreed with both claims. IJ Cassidy concluded the hearing by stating that the credible fear standard is not a proper test for review of asylum seekers, wholly disregarding the established legal standard for such cases.20 In a private conversation after this case, IJ Cassidy told the observer that the cases that come before him involve individuals “trying to scam the system” and that none of them want to be citizens. He also remarked that he thought the U.S. should be more like Putin’s Russia, where “if you come to America, you must speak English.”21 In another hearing, IJ Wilson told a respondent that “this case is like every case . . . came in from Mexico for medical treatment then try to claim asylum.”22 [text of footnotes omitted].

Director Osuna resigned a short time later, apparently in response to his concerns about the legitimacy of policies that the Trump immigration kakistocracy at DOJ intended to pursue. (Tragically, he died a short time later.) I am unaware that James McHenry, Osuna’s successor, hand-picked by AG Jeff “Gonzo Apocalypto” Sessions to “deconstruct due process @ EOIR” ever undertook a thorough investigation or that any sanctions were imposed upon these judges. But, stunningly, both were later appointed to the BIA by former AG Barr and continue to serve today under Garland. 

These are the types of life-threatening, humanity-degrading, anti-due-process actions that became routine at EOIR over the past four years, and caused my friend and expert Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law to ask in a recent press report: “How can you have a fair game when the referee is unfair?” https://immigrationcourtside.com/2021/08/03/😎👍🏼good-news-justice-even-as-latest-report-shows-massisive-failure-👎🏽🤮-eoir-poor-judging-politicized-practices-unhel/

Obviously, you can’t have a “fair game” under these circumstances. That was the whole point of the Trump DOJ, along with some gratuitous cruelty, malicious incompetence, and outright scofflaw behavior thrown in!

As Dean Caplow points out, the solutions aren’t “rocket science.” 🚀 But, so far, the problems EOIR continue to fester and undermine American justice!

🇺🇸Due Process Forever!

PWS

08-04-21

Related posts:

  1. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  4. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

 

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

pastedGraphic.png

Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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

You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the  Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control. 

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of  American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

Related posts:

  1. ⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”
  2. BIDEN PLAN TO REFORM ASYLUM SYSTEM @ THE BORDER MAKES SENSE, BUT ONLY IF CORRECTLY IMPLEMENTED WITH THE RIGHT PERSONNEL — The Devil 👿 Is In The Details & Major Progressive Judicial Reforms @ EOIR ⚖️ Are A Prerequisite! — “Early Returns” On Actually Solving Immigration/Human Rights/Due Process Problems From “Team Biden” Not Encouraging!☹️
  3. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  4. 🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

🇺🇸🗽👍🏼IMMIGRATION EXPERT UR MENDOZA JADDOU IS NEW USCIS DIRECTOR, FINALLY PUTTING AN END TO THE WHITE NATIONALIST CLOWN SHOW OF “TRUMP’S ILLEGAL” KEN “COOCH COOCH” CUCCINELLI! 

Ur Mendoza Jaddoul
Ur Mendoza Jaddou
Director, USCIS
PHOTO: PotomacLaw.com

This just in from Dean Kevin Johnson over at ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/07/senate-confirms-new-director-of-citizenship-and-immigration-services.html

The Biden administration looks very different from Trump’s.  That much is clear.

In that vein, Hamed Aleaziz for BuzzFeed reports that

“Ur Jaddou will become the first woman and first person of Arab and Mexican descent to be sworn in as director of US Citizenship and Immigration Services after the Senate confirmed her nomination on Friday.

The agency has not had a Senate-confirmed leader in more than two years . . . . ”

Secretary of Homeland Security Alejandro N. Mayorkas released this statement on Jaddou’s  confirmation:

“It is my honor to congratulate Ur Mendoza Jaddou on her confirmation as Director of United States Citizenship and Immigration Services.  Ur has two decades of experience in immigration law, policy, and administration.  She will administer our Nation’s immigration system fairly and justly.  As the daughter of hard-working immigrants, Ur understands how immigrant families enrich our country and the challenges they face.  I want to thank the United States Senate for confirming Ur.  I look forward to working closely with her to rebuild and restore trust in our immigration system.”

In announcing Jaddou’s nomination, President Biden offered the following biography:

“Ur Mendoza Jaddou has two decades of experience in immigration law, policy, and administration.  Most recently, she was the Director of DHS Watch, a project of America’s Voice, where she shined a light on immigration policies and administration that failed to adhere to basic principles of good governance, transparency, and accountability.  She is an adjunct professor of law at American University, Washington College of Law and counsel at Potomac Law Group, PLLC.  Previously, Jaddou was the Chief Counsel for U.S. Citizenship and Immigration Services (USCIS) . . . from June 2014 to January 2017.  Jaddou’s experience on immigration policy began as counsel to U.S. House of Representative Zoe Lofgren (2002-2007) and later as Chief Counsel to the House Immigration Subcommittee chaired by Rep. Lofgren (2007-2011).  Jaddou has also served as the Deputy Assistant Secretary for Regional, Global and Functional Affairs in the Bureau of Legislative Affairs at the U.S. Department of State (2012-2014).  Jaddou is a daughter of immigrants – a mother from Mexico and a father from Iraq – born and raised in Chula Vista, California.  She received a bachelor’s and a master’s degree from Stanford University and a law degree from UCLA School of Law. ” (bold added).

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Great choice, and congrats to Ur! 

USCIS was one of the “major victims” of the Trump immigration kakistocracy! Overt xenophobia and malicious incompetence literally “bankrupted” what was once one of the USG’s few self-supporting and “money making” operations. Think about that the next time some GOP “magamoron” babbles on about “fiscal responsibility!” 

Wonderful as this news is, Ur would have been even better as Director of EOIR or BIA Chair. THAT’S where the real “progressive leadership gap” and absence of “practical scholarship and experience in understanding and respecting the rights of migrants” is so glaring and debilitating. Also, I think that without better qualified, enlightened, progressive leadership at EOIR (or Article 1) many “reforms” at USCIS will be ineffective or not achieve their full potential.

For example, the Asylum Offices are a key component of USCIS. But the lousy guidance and precedent setting from past AGs and the BIA has severely limited the ability of the Asylum Office to achieve its full potential.

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor, Chief Counsel, USCIS
Former President, National
Association of Immigration Judges (“NAIJ”)

 

Ur does have some much needed help from experienced USCIS Chief Counsel Judge Ashley Tabaddor, former President of the NAIJ. Perhaps, working together, they can get the attention of Garland, Monaco, Gupta, and Clarke and successfully urge some long overdue progressive, due-process-oriented changes and better judicial appointments at EOIR. 

🇺🇸Due Process Forever!

PWS

08-02-21

Related posts:

  1. 😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!
  2. ⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”
  3. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  4. IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

⚖️🗽THE DEVIL 👹 IS IN THE DETAILS!  — Biden’s New Plan For Asylum Seekers: Long On Bureaucratese, Short On Specific Details — Questions Human Rights Advocates Should Be Asking!  

Asylum Seekers
Asylum Seekers
Wikimedia Commons — “Will US asylum seekers finally be treated fairly, humanely, and in accordance with full due process? Or is the Biden Administration’s recent “plan” just another “designed to fail enforcement gimmick” masquerading as legitimate asylum policy? Only time — and the details — will tell!

 

I found the White House “Fact Sheet” to be largely a mix of bureaucratic doublespeak, shame, blame, and few details about how it’s actually going to work. Also, not much about who is going to be responsible (and accountable) for making it work!

Here it is, so you can judge for yourself: 

https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/27/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/

Here are some of my questions:

  • Will those whose cases are denied by an Asylum Officer still have a right to IJ/BIA/Judicial Review?
  • How will they set up dedicated dockets without pushing back cases already on the docket?
  • What steps will be taken to insure that Judges assigned to these dockets aren’t members of the “90% Denial Club?”
  • How will they screen asylum cases with Title 42 still in effect?
  • What will be the role of detention? If detention is used, how will reasonable access to counsel be be guaranteed in detention centers?
  • Who will be training the CBP Agents, Asylum Offices, and Immigration Judges to recognize asylum claims, even those that might not be well-articulated by migrants or that might involve novel applications of protection laws?  
  • What advance coordination will take place with legal services groups to maximize representation.
  • How will positive asylum guidance be issued (given that the BIA has issued almost none in the past four years, and a number of negative precedents have been vacated by the AG or rejected by various Circuits)?
  • How will the success of this program be measured, particularly with respect to insuring full due process and fundamental fairness to all asylum applicants?
  • What type of resettlement opportunities or assistance will be made available for successful asylum, seekers and who will provide and fund it? 
  • Will there be any role for the UNHCR? If so, what?
  • How will DHS and EOIR solve the “effective notice problems” that have plagued the Immigration Court system for years and resulted in far too many “bogus in absentia removal orders.”
  • Who will insure the accuracy of statistics and that “gamed” or manipulated statistics are not used (as the Trump regime did) to create false narratives about “success” by the Administration or to promote unfair and inaccurate “myths” about asylum seekers.

🇺🇸Due Process Forever!

PWS

07-29-21

Related posts:

  1. ⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

⚖️☹️A GOOD MAN IN THE WRONG JOB — The Last Two GOP Administrations Cut Through The “Levi-Civiletti” Post-Watergate Institutional Reforms @ Justice Like A Hot Knife Through Soft Butter — Garland’s “Old School” Approach Is Likely Doomed To Failure, & Might Take American Democracy With It!  — The “St. Louis Gets Pushed Back Put To Sea” Every Day @ Garland’s Broken & Dysfunctional DOJ!☠️⚰️

Judge Merrick Garland
Attorney General Merrick B. Garland — His poignant recollection of the inability of his great aunts to find refuge in the U.S., and their resulting deaths in the Holocaust, haven’t stopped him from daily “pushing the St. Louis back out to sea” and denying legal protections and full due process to asylum seekers at our Southern Border and at EOIR — his “wholly owned court system” that functions more like a branch of DHS enforcement than a court of law!
Official White House Photo
Public Realm

 

https://www.washingtonpost.com/magazine/2021/07/19/merrick-garland-justice-department-catharsis/

David Montgomery writes in the WashPost:

. . . .

“Garland believes that a thorough de-Trumpification of the Justice Department would … be called partisanship and would call into question the institution of the Justice Department, but the institution has already been called into question,” says Jeff Hauser, executive director of the Revolving Door Project of the Center for Economic and Policy Research. “Sessions and Barr came in with a goal of assaulting and undermining the institution of the Justice Department, and it’s just weird to presume that they failed. We presume that they succeeded. They were in the building. They hired their minions. They assessed people. They politicized everything. Garland presuming that the previous Department of Justice was behaving in good faith requires the same suspension of disbelief as believing dragons are real in a fantasy novel.”

. . . .

And so, we’ll also be judging Garland by another standard: how well his approach fortifies the institution against a future administration that once again disrespects norms and politicizes the rule of law.

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

These quotes go to the heart of the problem with Garland’s stewardship and his naive, ivory tower, ineffectively timid approach to restoring the rule of law at Justice. “By the book” is NOT an effective strategy against opponents who seek to burn the book, bury the ashes, and lie about it! It’s basically no “strategy” all!

I’d be shocked, as would most knowledgeable observers, if the next GOP Administration doesn’t “disrespect the norms and politicize the rule of law.” Not only have the past two GOP Administrations done exactly that, in spades, but that’s basically what today’s GOP stands for: neo-fascist, anti-democracy  rule based on big lies and a cult of personality. 

To the extent the modern GOP believes in anything, it’s the exercise of power without restraint of law or morality. “Why? Because we can, and you can’t stop us. We’re in power, and you aren’t,” was largely the Trump McConnell mantra, particularly when it came to judges. How did the dying plea of RBG and the appeals of Dems for fairness and consistency in Supremes’ appointments work out? It was a classic “heads I win, tails you lose” that once again left the Dems grasping at thin air.

So, these folks are going to respect long-gone “norms” from the 1970s? “Norms” that couldn’t and didn’t stop Ashcroft, Gonzalez (“Gonzo I”), Mukasey, Sessions, or Barr? You have to be kidding? I don’t know what universe Garland has been living in for the past four plus years, but it doesn’t appear to be this one.

Contrary to Garland’s approach, there is absolutely nothing wrong with:

  • Coming clean on recent abuses at DOJ;
  • Replacing lawless immoral intentional misconstructions of law with better progressive ones that adhere to and further both the rule of law and “good government;” and
  • Replacing political hacks who furthered the White Nationalist agenda or other personnel who “went along to get along” with abuses, to keep their jobs, with progressive experts committed to due process and best practices who’ll get the job of restoring the rule of law, respect, and human dignity done.

Not only is there nothing wrong with the foregoing, but they are moral and practical imperatives if lives are to be saved and our democracy preserved! For Pete’s sake, these are actually the things that Biden and Harris campaigned upon and won! Why is Garland reticent to act upon truth? 

This isn’t an “academic exercise!” It’s an actual life or death moment for migrants and for our democracy! And, the opponents are not folks who intend to honor norms established by Garland or any other Dem. 

Indeed, they will characterize all of his actions as “radical socialism,” as they already have, regardless of the truth. In many ways, Garland’s incremental, largely passive, approach to “de-Trumpifying justice @ Justice” has been a huge gift to GOP anti-democracy insurrectionists and restrictionists. But, if I were him, I wouldn’t wait for the “thank you note.”  

To shrink from the bold decisive actions necessary to clean up the disgraceful mess at the DOJ and its most grotesque manifestations at EOIR shows not only a lack awareness, but a lack of belief  in the progressive, democratic, humane values that got Biden and Harris elected in the first place and got Garland his job.  

And, it’s not as if the problem with the values and institutional integrity at DOJ started only in the Trump regime. Under Bush II, Ashcroft and his advisor, notorious White Nationalist xenophobe Kris Kobach, had their plan to dismantle due process and fundamental fairness in the Immigration Courts, through compromising the BIA, in action before they even set foot in the building 10th & Pa. Ave.  Those changes have actually cost some migrants their lives, and some DOJ attorneys their jobs (for the “crime” of standing up for due process for migrants) even before the Trump kakistocracy arrived.

And, al la Garland, the Obama Administration’s failure to either acknowledge the historical truth or take the obvious and necessary corrective actions sent our Immigration Courts and justice for migrants into a steep decline that became a “death spiral” under Sessions (“Gonzo Apocalypto”) and Barr and continues its accelerated downward trajectory under Garland. It’s a contributing factor in the largely self-created 1.3 million case Immigration Court backlog generated by Sessions and Barr at EOIR. 

Indeed, the lack of quality, intellectual honesty, practical guidance, humane values, common sense, expertise, and legitimacy at EOIR has spread to and adversely affected other areas of our beleaguered justice system and now threatens to take down everything in a messy heap. Why a former Article III Appellate Judge can’t grasp that reality and act accordingly is beyond me. 

Maybe its because he didn’t personally experience enough of EOIR’s deadly, failed, corner-cutting “work product” at the D.C. Circuit because DC has no “resident Immigration Court.” Maybe it’s because he can’t “connect the dots” between his relatives who died in the Holocaust and having no legal asylum system for those arriving at our Southern border and denying asylum seekers full due process every day @ EOIR.

For the reasons set forth in the article, it seems that Judge Garland is philosophically and by personality incapable of leading and implementing long overdue, critical progressive changes at this point in his otherwise distinguished career. The only hope would be that one of his advisors could light a fire and get him out of his inept centrist institutionalist funk. 

But, the two best hopes to do that, Associate Attorney Vanita Gupta and Assistant AG for Civil Rights Kristen Clarke, who should be personally familiar with the practical and racial justice disaster at EOIR and its overall adverse effects on justice in America, have failed to make a visible impact.

Garland needs a practical expert like Dean Kevin Johnson at U.C. Davis Law, Professor Karen Musalo at the Center for Gender and Refugee Studies at Hastings Law, Jaya Ramji-Nogales, Associate Dean at Temple Law, Judy Rabinowitz at ACLU, Marielena Hincappie at the National Immigration Justice Center, or someone of equal expertise and stature in civil and human rights to advise him and lead the reform effort at EOIR. Sadly, he does not appear interested in surrounding himself with such capable, talented individuals who could “save him from himself” while saving the lives of those like his great aunts who perished in the Holocaust for want of a viable refugee and asylum system.

Like Garland, I was at the DOJ during the Levi-Civiletti post-Watergate reform era. I once knew him and certainly helped out his “boss” Ben Civiletti on several occasions. 

Somewhere in the “archives,” I have a handwritten note from Ben Civiletti expressing his gratitude that he never had to use the “administrative subpoena” and “designation as an “immigration officer” that I had drafted for him in the midst of one of a number of “immigration emergencies” involving a plane on the tarmac. 

Somewhere along the line, Merrick seems to have forgotten that even Civiletti was willing to take bold actions when necessary to advance the cause of immigration justice! There was no “precedent” for the Attorney General personally serving an INS subpoena. But, Civiletti was on the verge of doing it, until “Plan A” prevailed, and the crisis was resolved without resorting to “Plan B” or even “Plan C.” 

I was also there and directly affected when the likes of Ashcroft, “Gonzo I”, Kobach, and Mukasey cut through those post-Watergate reforms at EOIR as though they never existed, with little resistance except for a few of us “survivors” who adapted and continued to fight for due process and individual justice in a deteriorating system. 

I watched in disgust and disbelief as the Obama Administration (“change?” — not so much in immigration) completely “blew” the opportunity to make life and democracy saving corrections at EOIR. I then saw from the outside as “Gonzo Apocalypto” and Barr aggressively and systematically dismantled American justice, starting with the Immigration Courts. Their job was made infinitely easier by the indolence of the Obama Administration in failing to systematically bring progressive reforms and appoint more progressive judges at EOIR.

But, those of us “on the outside” were not just “passively outraged” by the due process and human rights abuses flowing from DOJ, we took action! Among many groups forming the New Due Process Army (“NDPA”), our Round Table of Former Immigration Judges, some of whom had resigned or retired as an act of conscience, helped lead the charge against the Trump regime’s inhumane, scofflaw policies and bogus legal interpretations. 

We filed over 100 amicus briefs in tribunals from the Supremes to the BIA, many of them successful in helping to correct and reverse the regime’s anti-due process, anti-immigrant, racially driven policies. We also wrote, educated, did media interviews, organized, inspired others to join the resistance, and voted for change!

Even assuming, as I do, that any future GOP Administration would move to undo progressive reforms and replace progressive judges, their job would be made much more difficult if Garland creates the progressive judiciary that he should at EOIR. Moreover, even if exiled, “true  progressive practical scholars” will form the expert backbone of the resistance to neo-fascism in the “next generation” of the Round Table and the NDPA. 

Some “graduates” of a progressive Immigration Judiciary could be elevated to the Article III Judiciary where they will have continuing beneficial influence beyond the ability of the next GOP Administration to change. Others could use their knowledge of the system to fight the forces of nativism, restrictionism, White Nationalist myths, and mindless cruelty. Others will run for office and improve our moribund legislative branch! Who knows, we could even get Article I during the Biden Administration, giving a progressive immigration judiciary yet another degree of protection from right-wing political shenanigans!

Garland’s “stuck in the irretrievable past” approach to EOIR and the DOJ generally is blowing a golden, perhaps never-to-come again, chance to finally create an effective progressive judiciary at EOIR and, perhaps most important, to save lives and stop “pushing the St. Louis” back out to sea! It’s something that Biden can’t fully achieve in the Article IIIs. It’s painful to watch him squander the opportunity.

Merrick Garland might well have been a great Supreme Court Justice had Mitch McConnell and the GOP had a serious interest in institutional integrity and preserving norms. They didn’t (which should have been “signal” that got Garland’s attention)! Garland might also have been great Attorney General in a bygone era. 

Sadly for both Garland and America, he’s not the “right fit” for the job under today’s realities. Not only will that forever tarnish his reputation, but it could well cost the rest of us our democracy. 

🇺🇸Due Process Forever! Timidity and false “restraint” in delivering equal justice for all, never! 

The meek might well inherit the earth in the next world. But, they won’t restore the rule of law to the Department of Justice in this one!☠️ 

Come on, Judge Garland, take off the blinders and show that you are smart, flexible, and capable enough to get beyond the limitations of your past experiences and take the bold, aggressive, courageous, potentially controversial, yet absolutely necessary and long overdue, actions necessary to restore the rule of law at Justice in the 21st year of the 21st Century. And, that starts with progressive due process reforms and major personnel changes at EOIR!

PWS

07-26-21 

 

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

HISTORICAL ADDENDUM FROM HON. “SIR JEFFREY” CHASE:

I actually had Civiletti’s desk at the BIA (I was told that Tony Moscato had brought it with him from Main Justice).

PWS

07-27-21

Related posts:

  1. CRIMES AGAINST HUMANITY🏴‍☠️☠️🤮👎🏻: Victims Of Trump, Miller, Sessions Child Abuse May Suffer Lifelong Damage Similar To That Of Holocaust Survivors! — “My mom and I have learned along the way that nothing seems to make it go away. Not her prayers. Not my ‘American Dream’ success. Not any logical explanation of how governments work or don’t work. My mother’s touch will always feel foreign to me.” — PLUS: BREAKING UPDATE: Just Released House Report Documents Regime’s Massive Human Rights Criminal Conspiracy Against CHILDREN!
  2. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  3. 🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

🗽ASYLUM IS OUR LEGAL OBLIGATION, NOT AN “OPTION” OR SOMETHING TO BE “DETERRED” —  “For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option. . . . ‘I want to live. I want to be somebody. Nobody wants to die.’”

“Floaters”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration’s continuation of the Trump regime’s illegal and deadly anti-asylum policies at the border is totally unacceptable!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

FROM SPLC:

The message was loud and clear: “Do not come.”

This would be the Biden administration’s initial attempt to deter migrants who fled danger in their home countries from seeking protection in the U.S.

First, President Biden in March discouraged migrants from trekking north to the U.S.-Mexico border to seek asylum. He suggested they stay in their home countries – where many face violence and persecution – as the administration addressed an increase in the number of unaccompanied migrant children crossing the southwestern border.

Then, the administration continued to rely on the contested Trump-era Title 42 order by the Centers for Disease Control and Prevention (CDC) to reject migrants at ports of entry and expel those who cross the U.S.-Mexico border without authorization, thereby denying their legal right to seek asylum.

And in June, the administration delivered another warning to would-be asylum seekers from Guatemala: “Do not come,” said Vice President Kamala Harris during a news conference alongside Guatemalan President Alejandro Giammattei. “The United States will continue to enforce our laws and secure our borders. If you come to our border, you will be turned back.”

Sarah Rich, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project, said the vice president’s comments were strikingly similar to rhetoric employed by the Trump administration.

“Seeking protection from violence and persecution is a fundamental human right, and the right to seek asylum is protected by U.S. and international law,” Rich said. “These remarks fly in the face of the right to seek asylum in the U.S. and indicate a disturbing continuity between the Trump administration and the Biden-Harris administration.”

For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option.

“I fled my country because I wanted to survive,” Emiliana Doe, whose name has been changed in this story to protect her identity, told the SPLC in Spanish. “I want to live. I want to be somebody. Nobody wants to die.”

READ MORE

In solidarity,

Your friends at the Southern Poverty Law Center

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

Speak out against the Biden Administration’s continuation of Trump’s illegal, inhumane, anti-asylum policies at the border! Demand that AG Garland replace unqualified “Miller Lite” anti-asylum Immigration Judges, who happily furthered the past regime’s xenophobic, anti-due-process policies, with far better qualified progressive experts! Demand a BIA that will be a courageous leader in granting legal protection and reducing backlogs through best practices and full due process! Demand that Garland stop dragging his feet and finally fulfill the original EOIR vision of “guaranteeing fairness and due process for all.” Demand an Attorney General with the backbone and integrity to tell Biden, Harris, & Mayorkas that their continued abrogation of asylum laws and international obligations, not to mention Constitutional protections, is grossly illegal and must end NOW!

By contrast with Garland’s timid, dilatory, and often apparently indifferent approach to the rule of law for migrants, not to mention human lives, Jeff Sessions had absolutely no problem intervening, without invitation, in any agency’s programs and policies to advance his  White Nationalist, nativist, xenophobic mis-interpretations of the law!

🇺🇸⚖️Due Process Forever!

PWS

07-25-21

Related posts:

  1. 🏴‍☠️🤮☠️⚰️👎🏻STILL SCOFFLAWS AFTER ALL THESE MONTHS: UNHCR SPEAKS OUT AS BIDEN, HARRIS, GARLAND, MAYORKAS CONTINUE TRUMP-MILLER POLICIES OF ILLEGAL, IMMORAL, UNNECESSARY RETURN OF ASYLUM SEEKERS WITH NO DUE PROCESS UNDER BOGUS TITLE 42 RATIONALE! — Ever Wonder Why Racial & Gender Justice & Equity Are Mirages In Today’s America? — Look No Further Than The “Dred Scottification” Of “The Other” @ DOJ & DHS On Display Every Day!
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!
  4. ⚠️🚸V.P. HARRIS IS GOING TO THE BORDER: SHE SHOULD TALK WITH THE REAL VICTIMS OF HER GOVERNMENT’S, ILLEGAL, WRONG-HEADED, IMMORAL, AND INEFFECTIVE BORDER DETERRENCE POLICIES — Avoid The CBP “Dog & Pony Show,” & The GOP’s Cowardly “Gunboat Cruz” — Cross Over The Border, View The Human Rights Catastrophe We Have Created, Understand People Have A Right To Seek Legal Refuge, & Fix The Legal Asylum System At Ports Of Entry & Immigration Courts With Humane, Practical Experts! — “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.” — Stop Blaming, Shaming, & Dehumanizing The Victims & Start Fixing Our Asylum System & Solving The Problems That Force Them To Migrate!

⚖️EXPERTS TO DISCUSS FUTURE OF IMMIGRATION COURTS ON JULY 23! — Join Judge Amiena Khan (NAIJ) & Julia Preston (Marshall Project, former NY Times) For An Enlightening Discussion From Two “Practical Scholars” Who Have Seen The Harsh Realities Of Today’s Broken & Dysfunctional EOIR “Up Close & Personal!” 

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ)
Judge Amiena Khan Executive Vice President National Association of Immigration Judges (NAIJ)
Julia Preston
Julia Preston
American Journalist
The Marshall Project

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-future-of-the-immigration-courts-free-webinar-july-23-2021

The Future of the Immigration Courts: Free Webinar, July 23, 2021

Documented Talks: The Future of the Immigration Courts

 

“The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? Join Immigration Judge Amiena Khan, President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project, for a discussion on the future of the immigration courts.

The two will discuss where the judge’s union stands in its decertification fight; what judges are hoping to see from this administration and what the lasting impacts of the past 4 years will be.

Join us at 1 pm on July 23rd, 2021

Panelists:

Hon. Amiena Khan:

Judge Khan is the President of NAIJ. Judge Khan was appointed as a United States Immigration Judge in New York by Attorney General Eric Holder in December 2010. In her personal capacity, she is a member of the Federal Bar Association (FBA) and is the Vice-Chair of the Federal Bar Association Immigration Law Section.

Judge Khan is appearing in her capacity as President of NAIJ. Her views do not represent the official position of the Department of Justice, the Attorney General, or the Executive Office for Immigration Review. Her views represent her personal opinions, which were formed after extensive consultation with NAIJ membership.

Julia Preston:

Julia Preston is a Contributing Writer at The Marshall Project. Preston previously worked for 21 years at The New York Times. She was the National Correspondent covering immigration from 2006 through 2016, and a correspondent in Mexico from 1995 through 2001, among other assignments. She is a 2020 winner of an Online Journalism Award for Explanatory Reporting, for a series by The Marshall Project on myths about immigration and crime. She was a member of the Times staff who won the 1998 Pulitzer Prize for reporting on international affairs, for a series on the corrosive effects of drug corruption in Mexico.

Time

Jul 23, 2021 01:00 PM in Eastern Time (US and Canada)

* Required information

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

Should be a great panel from two real experts from the NDPA! 

Sadly, however, it’s not clear that Judge Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and others who are supposed to be fixing the dysfunction will be among the audience. Nor do I see much concrete evidence that they have established a meaningful dialogue with those, like Amiena and Julia, who have the expertise and creative problem solving ability to fix the DOJ’s embarrassingly broken “courts” before more migrants and their attorneys are abused.

In my view, and the view of many others, the “destructive phase” of the last four years moved much more rapidly and with more purpose than the “reconstructive and improvement phase” that was promised by the Biden Administration.

There are still far too many of those who were “part of the problem” in key positions, and far, far too few, if any, dynamic new faces who have been brought in (or promoted from within) with the capability and the mandate to fix the mess, establish progressive values, and return to a due process/fundamental fairness/best practices focus!

There are “reliable rumors” of some better appointments in the offing. But, it hasn’t happened till it happens.

🇺🇸Due Process Forever!

PWS

07-20-21

 

Related posts:

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  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  4. JULIA PRESTON & ANDREW R. CALDERON @ POLITICO: DISORDER IN THE COURTS! — How The Trump Administration’s Cruel, Biased, Yet Fundamentally Stupid, Policies Are Creating Endless Backlogs And Destroying A Key Part Of The U.S. Justice System! — “Malicious Incompetence” Generates “Aimless Docket Reshuffling” & Creates An Existential Crisis While The Two Branches That Could Put An End To This Nonsense — Congress & The Article III Courts — Sit By & Twiddle Their Collective Thumbs!

⚖️🧑🏽‍⚖️☹️GARLAND’S 10 NEW IJ APPOINTMENTS CONTINUE TO HEAVILY FAVOR GOVERNMENT OVER PRIVATE PRACTICE, CLINICS, ACADEMIA — Only 3 Came Directly From Private Practice — Biden Administration “Disses” Progressive Immigration/Human Rights Experts Who Helped Put Them In Office!

 

https://www.justice.gov/eoir/page/file/1412741/download

    NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365

PAO.EOIR@usdoj.gov @DOJ_EOIR www.justice.gov/eoir

July 16, 2021

EOIR Announces 10 New Immigration Judges

   FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced 10 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ). ACIJs are responsible for overseeing the operations of their assigned immigration courts. In addition to their management responsibilities, they will hear cases. IJs preside in formal judicial hearings and make decisions that are final, unless formally appealed.

After a thorough application process, Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White to their new positions.

Biographical information follows:

Megan R. Jackler, Assistant Chief Immigration Judge, New Orleans Immigration Court

Megan R. Jackler was appointed as an Assistant Chief Immigration Judge to begin supervisory immigration court duties and hearing cases in July 2021. Judge Jackler earned a Bachelor of Arts in 2003 from Barnard College and a Juris Doctor in 2008 from the American University Washington College of Law. From 2009 to 2021, she served as a U.S. Navy Judge Advocate, in the following locations: Norfolk, Virginia; Pearl Harbor, Hawaii; Gulfport, Mississippi; Mazar- e-Sharif, Afghanistan; and Yokosuka, Japan. From 2003 to 2005, she was a Litigation Paralegal with Davis Polk & Wardwell LLP, in New York. Judge Jackler is a member of the District of Columbia Bar, New Jersey State Bar, New York State Bar, and Virginia State Bar.

Justin S. Dinsdale, Immigration Judge, Houston – Greenspoint Park Immigration Court

Justin S. Dinsdale was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Dinsdale earned a Bachelor of Arts in 2000 from Texas Christian University and a Juris Doctorate in 2004 from South Texas College of Law Houston. From 2015 to 2021, he served as an Assistant U.S. Attorney with the U.S. Attorney’s Office for the Southern District of Texas, in Brownsville. From 2011 to 2015, he was in private practice with the Law Office of Justin S. Dinsdale, in Brownsville. From 2008 to 2010, he was an Associate Attorney with Rodriguez, Colvin, Chaney & Saenz LLP, in Brownsville. From 2004 to 2008, he served as an Assistant District Attorney with the Cameron County District Attorney’s Office, in Brownsville. Judge Dinsdale is a member of the Idaho State Bar and the State Bar of Texas.

Communications and Legislative Affairs Division

 

EOIR Announces 10 New Immigration Judges

Page 2

Alexander H. Lee, Immigration Judge, Houston – Greenspoint Park Immigration Court

Alexander H. Lee was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Lee earned a Bachelor of Arts in 1997 from Kenyon College and a Juris Doctor in 2002 from Chicago-Kent College of Law. From 2017 to 2021, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Pearsall and San Antonio, Texas. From 2011 to 2017, he served as a Staff Attorney for the Washington State Department of Health, in Tumwater, Washington. From 2005 to 2011, he was in private practice in Olympia, Washington. Judge Lee is a member of the Washington State Bar.

Loi L. McCleskey, Immigration Judge, San Francisco Immigration Court

Loi L. McCleskey was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge McCleskey earned a Bachelor of Arts in 1996 from Capital University and a Juris Doctor in 1999 from Capital University Law School. From 2013 to 2021, she served as an Administrative Hearing Officer Supervisor; from 2011 to 2013, Senior Administrative Hearing Officer; and from 2003 to 2011, Administrative Hearing Officer for the State of Ohio in Columbus. From 2000 to 2003, she was in private practice in Columbus. Judge McCleskey is a member of the Ohio State Bar.

Edwin E. Pieters, Immigration Judge, New York – Federal Plaza Immigration Court

Edwin E. Pieters was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pieters earned a Bachelor of Science in 1987 from State University of New York at New Paltz; a Master of Political Science/Governmental Law in 1992 from City University of New York at Brooklyn College; a Master of Public Administration in 2000 from City University of New York at Baruch College; a Juris Doctorate in 2002 from the City University of New York Law School at Queens College; and a Master of Law in 2005 from the State University of New York at Buffalo Law School. From 2018 to 2021, he served as a Hearing Officer for the New York City Office of Administrative Trials and Hearings. From 2006 to 2017, he served as an Assistant District Attorney at the Kings County District Attorney’s Office, in Brooklyn. Judge Pieters is a member of the New York State Bar.

Artie R. Pobjecky, Immigration Judge, Houston – Greenspoint Park Immigration Court

Artie R. Pobjecky was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pobjecky earned a Bachelor of Arts in 1997 from the University of Central Florida and a Juris Doctor in 2001 from Baylor University School of Law. From 2007 to 2021, she was a Partner with Pobjecky & Pobjecky LLP, in Winter Haven, Florida. From 2015 to 2017, she served as Chair of the American Immigration Lawyers Association, Central Florida Chapter. From 2002 to 2007, she was an Associate Attorney with J. David Pobjecky PA, in Winter Haven. Judge Pobjecky is a member of the Florida Bar, Pennsylvania Bar, and the State Bar of Texas.

Jodie A. Schwab, Immigration Judge, Houston – Greenspoint Park Immigration Court

Jodie A. Schwab was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Schwab earned a Bachelor of Arts in 1990 from the University of Texas at San Antonio and a Juris Doctor in 1993 from St. Mary’s University School of Law. From 2018 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Houston. From 2017 to 2018, she was Senior Counsel with Greer, Herz & Adams LLP, in League City, Texas. From 2006 to 2017,

Communications and Legislative Affairs Division

 

EOIR Announces 10 New Immigration Judges

Page 3

she served as a Law Clerk to the Honorable Magistrate Judge John Froeschner, with the U.S. District Courts, Southern District of Texas. From 2005 to 2006, she served as a Deputy Attorney General, California Office of the Attorney General, in Sacramento, California. From 2004 to 2005, she was a Litigation Attorney for a Staff Counsel Office with Farmers Insurance Exchange, in Stockton, California. From 1994 to 2003, she was Counsel at United Services Automobile Association, in San Antonio. Judge Schwab is a member of the State Bar of California and State Bar of Texas.

Kenneth S. Sogabe, Immigration Judge, Seattle Immigration Court

Kenneth S. Sogabe was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Sogabe earned a Bachelor of Arts in 1995 and a Master of Arts in 1996, both from San Francisco State University, and a Juris Doctor in 2001 from Golden Gate University School of Law. From 2018 to 2021, he served as Associate General Counsel, Office of General Counsel, Department of Defense Education Activity, in Okinawa, Japan. From 2014 to 2018, he served as an Attorney Advisor, Office of Chief Counsel, Customs and Border Protection, DHS, in San Francisco. From 2007 to 2014, he served as a Staff Attorney for the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. From 2001 to 2006, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security (DHS), in San Francisco. Judge Sogabe is a member of the State Bar of California.

Lydia G. Tamez, Immigration Judge, Houston – Greenspoint Park Immigration Court

Lydia G. Tamez was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Tamez earned a Bachelor of Arts in 1981 from Yale University and a Juris Doctor in 1985 from Yale Law School. From 2019 to 2021, she served as an Associate Judge for the City of Houston Municipal Courts. From 2016 to 2021, she was in private practice in Houston. From 2015 to 2016, she was a Counselor at Law with Graves and Graves LLP, in Houston. From 2012 to 2015, she was a Partner with Foster LLP, in Houston. From 2003 to 2011, she was an Associate General Counsel; from 1999 to 2003, a Senior Attorney; and from 1995 to 1999, an Attorney for Legal and Corporate Affairs, with Microsoft Corporation, in Redmond, Washington. From 1986 to 1995, she was an Attorney for Tindall and Foster PC, in Houston. Judge Tamez is a member of the State Bar of Texas and the Washington State Bar.

Romaine L. White, Immigration Judge, Houston – Greenspoint Park Immigration Court

Romaine L. White was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge White earned a Bachelor of Arts in 1983 from the University of Virginia and a Juris Doctor in 1986 from the University of Georgia School of Law. From 2012 to 2021, she served as an Administrative Law Judge for the Louisiana Division of Administrative Law, in New Orleans. From 2004 to 2021, and previously from 1999 to 2001, she was a sole practitioner with the Law Office of Romaine L. White LLC, in Houma, Louisiana. From 2001 to 2006, she served as an Assistant Parish Attorney for the Terrebonne Parish Consolidated Government, in Houma. From 2001 to 2004, she was an Associate Attorney with McNabb and Associates, in Houma. From 1997 to 1998, she served as Deputy General Counsel for the State Bar of Georgia, in Atlanta. From 1991 to 1997, she served as a Senior Assistant City Attorney for the City of Atlanta. From 1986 to 1991, she was an Associate Attorney with Griffin, Cochrane, & Marshall, in Atlanta. Judge White is a member of the State Bar of Georgia and the Louisiana State Bar. Communications and Legislative Affairs Division

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The three appointments from private practice include Judge Linda G. Tamez of Houston who appears to have served as a Municipal Judge in Houston while in private practice from 2019-21. Similarly, Judge Romaine L. White of Houston Greenspoint appears to have maintained a private practice while serving as a Louisiana State ALJ from 2012-21.

The sole new IJ to list AILA experience is Judge Artie J. Pobjecky of the Houston Greenspoint Immigration Court, who served as Chair of the AILA, Central Florida Chapter, from 2015-2017.  She is also the only new appointee who appears to have been working primarily in the private practice of immigration law at the time of her appointment.

Several other appointees did have some type of private sector  experiences, although they were serving in various government positions at the time of appointment. None, however, stood out as having much, if any, experience representing individuals in Immigration Court in this broken and dysfunctional system.

It’s super critical for NDPA members to 1) keep applying en masse for these jobs, and 2) let your extreme dis-satisfaction with Garland’s tone-deaf, one sided appointments to the Immigration Courts be known to the Biden Administration. 

We need to keep attacking until the walls of anti-expert, anti-advocate, anti-private-sector, anti-diversity bias that has been “baked into” the DOJ IJ and BIA selection process for the better part of several decades is finally broken and excellence and practical scholarship in immigration, human rights, and due process finally break through and prevail. Also, continuing to pummel the Garland EOIR’s substandard work product in the Article IIIs will keep illustrating the point that something has got to change here!

In the meantime, keep pushing Congress for an independent Immigration Court that will be free of the DOJ bureaucracy and will require a merit-based selection system with input from “outside experts!” 

🇺🇸Due Process Forever! Status quo, never!

PWS

07-19-21

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⚖️9TH CIR.’S PROGRESSIVES TAKE IT ON THE NOSE FROM CONSERVATIVE COLLEAGUES & SUPREMES — Dissent Matters — Immigration Among Key Supremes’ Reversals

 

https://www.latimes.com/politics/story/2021-07-13/with-trump-appointees-9th-circuit-suffers-another-year-of-reversals-at-supreme-court

David G. Savage & Maura Dolan report in the LA Times:

. . . .

“There is still a large cohort of liberal judges” on the 9th Circuit, said Ed Whelan, a conservative legal analyst in Washington, “but there are now many conservative appointees who are vigilant in calling them out.”

In total, 47 judges sit on the 9th Circuit — 24 appointed by Republicans going back to President Nixon, and 23 named by Democrats starting with President Carter.

Many of those judges work part time. Of the full-time jurists, 16 are Democratic and 13 are Republican appointees.

The size of the circuit — the nation’s largest — partly explains why its cases are often subject to Supreme Court review.

“The 9th Circuit is so vastly larger than any other circuit that it is inevitable they are going to take more 9th Circuit cases,” said Erwin Chemerinsky, dean of UC Berkeley’s law school.

Although this year’s 9th Circuit reversal rate was unusually high, the high court in fact overturned 80% of all the cases it reviewed, Chemerinsky noted.

Moreover, only a tiny percentage of appellate decisions are reviewed by the Supreme Court. Typically, the 9th Circuit hands down about 13,000 rulings a year.

Chemerinsky noted the Supreme Court overturned several 9th Circuit cases on immigration and habeas corpus, the legal vehicle for releasing someone from detention. “The 9th Circuit is historically more liberal on immigration and habeas cases,” he said.

Some reversals occurred in cases that were not ideological, however: The high court overturned a 9th Circuit decision by Republican appointees on what constitutes a robocall.

Though the Supreme Court split along ideological lines on property rights, voting rights and conservative donor cases from the 9th Circuit, the justices were unanimous in reversing the 9th Circuit in several immigration cases.

On June 1, they overturned a unique 9th Circuit rule set by the late liberal Judge Stephen Reinhardt. Over nearly 20 years, he had written that the testimony of a person seeking asylum based on a fear of persecution must be “deemed credible” unless an immigration judge made an “explicit” finding that they were not to be believed.

In one of his last opinions, Reinhardt approved of asylum for Ming Dai, a Chinese citizen who arrived in the U.S. on a tourist visa and applied for refugee status for himself and his family. He said they were fleeing China’s forced abortion policy.

Only later did immigration authorities learn that his wife and daughter had returned to China because they had good jobs and schooling there, but the husband had no job to return to.

An immigration judge had set out the full story and denied the asylum application, only to be be reversed in a 2-1 ruling by a 9th Circuit panel. The panel cited Reinhardt’s rule and noted that although evidence emerged casting doubt on Dai’s claims, there had been no “explicit” finding by an immigration judge so his story had to be accepted.

“Over the years, our circuit has manufactured misguided rules regarding the credibility of political asylum seekers,” Senior Judge Stephen S. Trott wrote in dissent. Later, 11 other appellate judges joined dissents arguing for scrapping this rule.

Last fall, Trump administration lawyers cited those dissents and urged the Supreme Court to hear the case. They noted the importance of the 9th Circuit in asylum cases. Because of its liberal reputation, “the 9th Circuit actually entertains more petitions for review than all of the other circuits combined,” the lawyers said.

In overturning the appeals court in a 9-0 ruling, Justice Neil M. Gorsuch began by noting that “at least 12 members of the 9th Circuit have objected to this judge-made rule.”

Justice Sonia Sotomayor delivered another 9-0 ruling holding that an immigrant arrested for an “unlawful entry” after having been deported years ago may not contest the basis of his original deportation. The 9th Circuit had said such a defendant may argue his deportation was “fundamentally unfair,” but “the statute does not permit such an exception,” Sotomayor said in U.S. vs. Palomar-Santiago.

The high court’s furthest-reaching immigration ruling did not originate with the 9th Circuit, but it nonetheless overturned a 9th Circuit decision.

At issue was whether the more than 400,000 immigrants who had been living and working in the U.S. under temporary protected status were eligible for long-term green cards. The Philadelphia-based 3rd Circuit said no, rejecting a green card for a Salvadoran couple who had entered the country illegally in the 1990s and had lived and worked in New Jersey ever since.

The 9th Circuit had taken the opposite view; Trump lawyers cited this split as a reason the high court should take up the New Jersey case. On June 7, Justice Elena Kagan spoke for the high court in ruling that the 3rd Circuit was right and the 9th Circuit wrong. To obtain lawful permanent status, the immigration law first “requires a lawful admission,” she said in Sanchez vs. Majorkas.

The 9th Circuit’s sole affirmance came in a significant case: By a 9-0 vote in NCAA vs. Alston, the justices agreed with the 9th Circuit that college sports authorities could be sued under antitrust laws for conspiring to make billions of dollars while insisting the star athletes go unpaid.

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

Read the complete article at the link.

This confirms the importance of the Biden Administration getting more progressive voices on Federal Courts at all levels, including the Immigration Courts!

First, not all important cases go to the Supremes, and those that do often take years to get there and be resolved. In the meantime, the rulings of BIA and the Circuits are often the “final word.” 

Even at the individual Immigration Judge level, only a small minority of cases are appealed. So the difference between progressive expert judges committed to due process, fundamental fairness, and humane practical interpretations and judges appointed because of a belief that they would “go along to get along” with DHS Enforcement is huge — basically life or death for many asylum seekers, other migrants, and their families (often U.S. citizens or LPRs).

Second, even where outvoted, progressive judges can often provide much more cogent, understandable, and practical alternatives to “knee jerk restrictionist/nativist” interpretations. Not only are these “better interpretations” often picked up and successfully argued and expanded by advocates, but they often expose shallow, specious reasoning by restrictionists and serve as “signposts to a better future” even if it sometimes takes years or even decades for the system to catch up. Also, dissents can prompt remedial legislation or needed oversight.

Indeed a number of the “Gang of Five” dissents from the “Schmidt-era BIA,” which basically cost us our jobs, still look very “spot on” decades later — particularly as Circuits continue to expose the intellectual dishonesty and corner-cutting sloppiness of far too many EOIR decisions in “life or death” matters!

Obviously, Trump McConnell and the right-wing activist organizations they parroted and enabled have had an immediate, large-scale, largely negative, effect on American Justice — from the Supremes all the way down to the Immigration Courts. It’s essential that the Biden Administration fight back with courageous, well-qualified, progressive “practical scholars” at all levels of the Federal Judiciary. Judges with the guts and integrity to expose and push back against the stilted, often anti-democracy, far right agenda of too many of the Trump-McConnell appointees.

In this respect, creating a progressive “model judiciary” to supersede the godawful, dysfunctional mess at EOIR should be the “low hanging fruit.” In practical terms, it also will help reduce backlog, raise the level of Immigration Court practice, and hold DHS accountable to the rule of law. It should also be a model for what a better progressive Article III Judiciary could and should look like, all the way up to the Supremes!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

07-19-21

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