"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law. Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.
Here is an ABA panel discussion led by Tsankov on judicial independence.
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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir! Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsNo “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.
Lopez Perez v. Garland, 5th Cir., 06-02-22, published
BEFORE:Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges
OPINION: Judge Southwick
Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.
It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.
2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).
7
Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022
No. 20-60131
We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).
We DENY the petition for review.
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It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)
Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!
Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:
Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.
Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:
ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.
All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.
“Heard (not Amber) on the street:
“So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
“No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
“The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
“Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
“It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”
Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.
The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!
“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”
Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!
The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.
I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.
The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.
Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.
Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels.
The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking!
In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!
Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.
It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S.So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!
Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999 — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.
Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ! 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)Cindy Carcamo Immigration Reporter LA Times
After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.
Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.
In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.
But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.
For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.
In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.
Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.
In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law
Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.
In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.
The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.
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Read the rest of Cindy’s totally disturbing article at the link!
Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types ofefforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.
The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.”
🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!
Immigration courts are overrun with cases, and it’s only getting worse
Nolan Rappaport, opinion contributor
The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States.
This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.
What is the administration doing to reduce the backlog?
Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.
According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.
Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.
These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.
The Florence Projectclaims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.
The Vera Institute of Justiceopposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”
In any case, it just speeds up the processing of new additions to the immigration court caseload. It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years.
It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://nolanrappaport.blogspot.com
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Go over to The Hill at the above link to read the complete article.
Thanks Nolan for continuing to “shine the light” on this critical issue that might appear to be “below the radar screen” but actually threatensthe stability of our entire legal system!⚖️
As I’ve said many times, Aimless Docket Reshuffling (“ADR”), engaged in to some extent by Administrations of both parties, is NOT the answer. It’s a huge part of the problem!
The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.
Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.
And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”
Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.
But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.
. . . .
Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.
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What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken EOIR!
Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break!
This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!
Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system!
You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!
After years of advocacy from theNational Immigration Judges Association (here and here), immigration attorneys (from ABA and AILA), and scholars, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA), introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577) that has passed House Judiciary Committeewith a vote of 24-12. It will next move to the House floor.
An section-by-section analysis of the full text legislation is here.
MHC
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Unfortunately, without any GOP support, this Article I Bill will be DOA in the Senate.
When a local security brigade in Nigeria learned Peter Udo and his boyfriend were seen having sex in a hotel room, they seized and beat the couple for six hours and later told Udo he should be put to death.
Udo’s mother used her family savings to enable him to flee the country and he wound up in California, where an immigration judge rejected his plea for asylum and ordered him deported because his description of the events gave a false name for the hotel where he had been captured. That order has now been firmly rejected by a federal appeals court.
The judge and the Board of Immigration Appeals, which upheld the deportation order, failed to give any “reasoned consideration” to the evidence Udo presented, the Ninth U.S. Circuit Court of Appeals in San Francisco said Wednesday in a ruling requiring the board to review his claim that he would be tortured if returned to Nigeria.
That evidence included an “excommunication notice,” signed by leaders of the community’s Council of Traditional Rulers, notifying Udo and his family that anyone engaging in homosexual acts is “subjected to public execution” and that his mother and five other relatives were no longer considered citizens of the community.
“Remarkably, the (Board of Immigration Appeals) did not reference the excommunication notice at all” in its ruling that would have returned Udo to Nigeria, Judge M. Margaret McKeown said in the appeals court’s 3-0 decision, which included a copy of the notice.
Udo’s lawyer, David Casarrubias, said the ruling was a victory for asylum seekers.
“The opinion stands for the proposition that although Congress may enact laws that make it harder for asylum seekers to prevail as a result of minor discrepancies in their applications, there are other international laws like the Convention Against Torture that still have teeth,” Casarrubias said.
. . . . .
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Read the rest of Bob’s article at the link.
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And things are just as bad on the other side of the country. Here’s what the 1st Circuit had to say about the latest mis-step from Garland’s “Star Chambers” on a life or death CAT matter:
The government does again urge us to construe the BIA as having merely affirmed a finding that it attributed to the IJ
10 For this reason, we need not resolve whether, as Ali contends, the IJ violated 8 C.F.R. § 1208.16(c)(3) by failing to consider all relevant evidence through the way the IJ treated the evidence from Harper in her testimony and March 2020 declaration that bears on Ali’s “security forces”-related ground for CAT-based deferral of removal.
– 30 –
regarding whether it was “more likely than not” that Ali would be subject to abuse severe enough to constitute torture rather than a finding that it attributed to the IJ regarding the limited severity of the abuse that Ali had shown that he was likely to suffer. But, as we explained in connection with Ali’s challenge to the BIA’s “other private actors”-related ruling, the IJ did not make that finding either. And, in any event, as we have noted, that is a strained reading of the BIA’s opinion, given that the opinion expressly quotes only from the portion of the relevant regulations that purports to define how severe abuse must be to constitute torture, see 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman treatment . . . .”), rather than a regulation concerning how “likely” it must be that the noncitizen will be subjected to abuse that is severe enough to constitute torture, see, e.g., id. §§ 1208.16(c)(2), (4).11
Finally, the government contends that we still must affirm the BIA’s ruling because, although Harper described violence, “she did not describe the injuries to the Somalis she
11 To the extent that the government means to argue here, too, that the BIA itself considered the Harper evidence in question because of the portion of the BIA’s opinion in which the BIA states, “after considering the risk of torture from all sources in the aggregate,” we cannot agree. That statement concerns only what the BIA determined that the IJ considered in making the finding about the severity of the abuse that Ali would face that the BIA attributed to the IJ. But, as we have explained, the IJ made no such finding.
– 31 –
witnessed being beaten or kicked . . . such that the agency could reasonably conclude she provided insufficient detail to show that such abuse by Somali security forces rose to the level of torture or that Ali was at risk that it likely would rise to the level of torture.” But, the IJ did not find that Ali had failed to meet his burden to show that he would likely be tortured by security forces in Somalia on any such basis. Rather, the IJ rejected his “security forces”-related ground for requesting deferral of removal pursuant to the CAT solely because the IJ found that “Harper indicated that the main motivation” of the security forces who “mean to do the respondent harm” is “they are either too busy to protect themselves and therefore they cannot protect other people” or to “harass people based on cultural differences,” such that they would not be acting “with the consent or acquiescence of a public official or other person acting in an official capacity” in visiting any abuse on Ali.
. . . .
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These are complicated cases. Indeed, the 1st Circuit spent 33 pages analyzing this particular case.
By contrast, a supposedly (but, clearly not) “expert” BIAappears to have taken about 5 minutes to “rubber stamp” the clearly defective denials prepared by staff attorneys in these life or death matters! How is this due process or fundamental fairness? No way!
If this were a law school exam, rather than a life or death “court” case, the BIA’s effort probably would have received a “D-“ or an “F.” Yet, Garland finds this ridiculously deficient level of performance acceptable where “only” the rule of law, constitutional due process, and human lives are at stake!
One might expect this from a GOP AG. But, is this really what human rights advocates and progressives elected Biden to churn out?
I say “No.” This is NOT acceptable performance by the BIA! Nor is it acceptable professional performance by Garland, Monaco, Gupta, Prelogar, and the other members of the “Clueless Crew” supposedly in charge of the DOJ!
⚖️Due process for migrants is due process for all in America!
Let me tell you about some recent events in my office.
We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.
For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket.
“Your asylum case is cancelled. Again.”
The second case has also been pending for years. The respondent (the noncitizen in court) is from Afghanistan, and such cases are supposedly receiving priority treatment. So at the Master Calendar Hearing, the Immigration Judge (“IJ”) asked us to be sure to talk to DHS prior to the hearing, presumably in the hope that we would come to an agreement about relief. The IJ also scheduled the hearing for a relatively short time slot in anticipation of a possible uncontested hearing. As with the first case, we filed all the evidence and scheduled the practices.
Both respondents had been in touch with their families overseas and both had talked to their relatives about hopefully reuniting soon.
Then – surprise! – we checked the Immigration Court portal and noticed that both cases had disappeared from the docket. Since the portal pages are sometimes screwy, and since court dates are constantly changing, we decided to wait a bit to see whether the dates reappeared. Informing clients about court delays is always fraught, and can even be traumatic for the clients and their families, who have a lot invested in these dates. So it is better not to inform the client until we are sure a date is canceled.
After some hours, we decided to tell the first client. We had a practice session scheduled for that afternoon, and it would waste time to prepare for a hearing that was not going forward. I called the client and informed him, and as I have often experienced before, he was upset and confused. Why had the case been postponed? Was it something about him or his case? Or was it something about the Court? I could at least inform him that we had two cases canceled on the same date (from two different IJs), and so he should understand that the cancellation was not related to him personally. That is obviously cold comfort, but I guess it is better than nothing. I know it was very upsetting for him to receive this news. It was emotionally exhausting for me as well.
For the next two days, this client kept checking the online court system to see whether anything changed. Then – surprise again! – the case re-appeared on the docket for the same old day and time!
I called the court to confirm, and the clerk told me that the case had been removed by accident, and that it was back on! How lucky! The client told me how upset he had been. He hadn’t been able to sleep or eat. He did not even inform his family back home, as he feared they would not understand or would not believe him. We rescheduled the two practice sessions and mentally re-prepared to go forward.
The next day – surprise again again! – I received a message from the court. The case was definitely off. The clerk apologized for the confusion, and told me that the matter would be set for a date in the future. It would be inappropriate for me to publish here the words that came from my mouth after receiving this message, but let’s just say that I was somewhat agitated. I called the clerk and left a message informing the court how harmful this whole process had been to the respondent, how upset he was, and how he had not seen his family members for years. I also mentioned how upsetting the experience had been for me.
I should say that I do not blame the clerk. He is actually very nice and very responsive (he actually called back and said he will try to get us a new date as soon as possible). The problem is “the system” and complaining to the system is about as effective as punching the ocean. No one is ever responsible, and so there is no one who can be held accountable.
As for client number two, at least he did not suffer the on-again, off-again fate of our first client. But he and his family members were also very upset, and given the IJ’s intention of scheduling the hearing quickly because the respondent is Afghan, it is particularly frustrating that a likely approval should be pushed off until who-knows-when.
What now? For both cases, we will wait a bit to see if new dates appear. Maybe they will. If not, we will file motions to advance, and we will try to get earlier dates. All this is more expense and wasted time for the clients, more work for us, and more work for the court, which will have to review our filings. Last year, I wrote about the harm caused by cancelled hearings, and–despite the easing pandemic and the wide-spread availability of Webex–the problem persists. I’ve mentioned just two cases here, but we see this again and again and again. Not in every case, but it’s common enough that we can never be confident that any particular case will go forward, which makes it much more difficult for respondents and attorneys to prepare for court.
While the situation is bleak, I should mention that the news is not all bad. We are still having some successes. For example, over my Spring Break, I litigated a Syrian case (remotely, with very questionable internet, and in what I believe is the first Immigration Court case in the history of Shickshinny, Pennsylvania). Although it was a close case and DHS generally opposed relief, the IJ explained his reasons for granting and DHS agreed not to appeal. And just yesterday, my client from Pakistan received asylum after a contested hearing. DHS did not appeal.
So if we can actually get to a hearing, it is still possible to win. This is the hope we all need to hold on to, but it would be much easier and much fairer if the system had a modicum of respect for the people it purports to serve.
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Thanks, Jason, for your clear and compelling description of the toxic human and systemic effects of Garland’s continuing “ADR” at EOIR!
Contrary to the “nativist false narrative” promoted under Administrations of both parties, those suffering in the inexcusable EOIR backlog are NOT “evading deportation.” Many, probably the majority, are individuals who are eligible to, and should be granted, the ability to remain in the U.S.
This is particularly true of asylum applicants. Even with a system improperly skewed against them, asylum applicants were winning the majority of their EOIR court cases as recently as FY 2012.
Despite worsening conditions since then in almost all “sending countries,” that rate cratered by about 50% during the Trump regime. It’s fairly obvious that the increased denial rates resulted from perversions of the law, ADR, and an intentional “dumbing down” of both the administrative law and EOIR personnel at all levels.
Garland has taken, at best, “baby steps” to improve the Immigration Courts. He’s merely “nibbling at the edges” where radical house cleaning 🧹and progressive reforms ⚖️ were absolutely necessary, recommended by experts, and achievable — at least had Garland “hit the ground running!”
EOIR should long ago have been replaced with an independent Article I Immigration Court based on the principles of fairness, scholarship, timeliness, respect, teamwork, and most of all, an overriding unswerving commitment to due process and best practices. Judges and administrators should be selected competitively, with private bar input, and exclusively on a merit basis from among those who have demonstrated expertise in immigration and human rights.
As long as EOIR inappropriately continues to reside in the U.S. Department of Justice, there should never, NEVER, again be another Attorney General who does not possess significant experience representing individuals in Immigration Court — the fundamental “retail level” of our entire justice system. Garland ‘s failure to “get the job done for due process and equal justice” — not even close — is “Exhibit A” in what happens when the wrong person is appointed to oversee the Immigration Courts!
At a time when America needed enlightened, inspirational, informed, and courageous legal and ethical leadership for the Immigration Courts, Garland has been “MIA!” American justice, at all levels, is paying the heavy price!☹️
Merrick Garland: “What, me worry? I’ve spent my entire law career in the ‘ivory tower.’ What’s ‘aimless docket reshuffling?’ Who cares about asylum seekers?” PHOTO: Wikipedia Commons
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”Scott Bixby National Reporter The Daily Beast
As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.
But breaking the system might be the only way to save it.
On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”
But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.
“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”
One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”
“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”
Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.
“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.
“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”
With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.
That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.
The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.
But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.
“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”
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Read Scott’s full article at the link.
One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.
White Nationalists Jeff“Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog.
As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!
While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!
But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.
One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges!It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster.
What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.
Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.
Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!
There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!
There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!
A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.
Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as hisbroken “court” system veers off the road and goes down the embankment.
It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.
But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.
EOIR Announces Appointment of Mary Cheng as Deputy Director
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Mary Cheng as the agency’s Deputy Director. Judge Cheng has served EOIR since 2009, including as a Deputy Chief Immigration Judge for the past five years.
“Judge Cheng brings a welcome combination of experience and expertise, preparing her for certain success as EOIR’s deputy director,” EOIR Director David L. Neal said. “Her experience on the immigration bench, her expertise as a managing judge, and her appreciation for the view from both counsels’ tables perfectly position her to help lead the agency to a reinvigorated commitment to our mission and to public service.”
As Deputy Director, Judge Cheng will assist Director Neal in supervising and managing all EOIR components, and developing and implementing agency policies and short- and long-term strategies.
Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002. Judge Cheng received her Bachelor of Arts from New York University and a Juris Doctor from the New York Law School. She is a member of the New York State Bar.
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Judge Cheng had a 71.5% asylum grant rate while on the bench in NYC. That makes her an “outlier” (in a good way) among EOIR HQ “honchos” with significant Immigration Court experience.
Judge Cheng spent two years in the private practice ofimmigration law, albeit several decades ago, as well as serving as a JLC at the NY Immigration Court and an ICE prosecutor. So, she has a more “balanced perspective” on the system than many in EOIR.
Interestingly, Judge Cheng’s record on asylum cases is the “inverse” of the nationwide rate, where 2/3 of the asylum cases are denied and many IJs disgracefully reject almost every asylum case coming before them. So, she knows the system is broken, biased, unfair, and unprofessional!
The question is whether she will use her knowledge and skills to stand up for due process and fair treatment of asylum seekers? Or, will she become another in the long line of EOIR “go along to get along bureaucrats” — willing to sacrifice immigrants’ lives for job security and career advancement?
Hopefully, Judge Cheng will implement some “attitude changes” in an agency still far too committed to the Sessions/Barr “culture of denial” and to misusing, abusing, and mismanaging the Immigration Courts as a “deterrent” — carrying out Administration enforcement “priorities” —rather than acting as an independent court system using “enlightened practical scholarship” to guarantee due process and fundamental fairness for the individuals coming before it. EOIR has lost sight of its mission and Garland doesn’t seem interested in or capable of changing that.
As for the “certain success,” predicted by Director Neal, that’s been elusive for some previous Deputy Directors. Three previous Deputies have gone on to become EOIR Director: The late Kevin Rooney, Judge Kevin Ohlson, and the late Juan Osuna. But, “success” in an organization in failure that lacks a dynamic plan for long overdue fundamental personnel, procedural, and structural reforms looks like a tall order. It’s probably“Mission Impossible!”
The only true measure of “success” is whether the community that EOIR is supposed to serve comes to view the courts as fair, humane, and professional. That depends on changing the results of EOIR’s anti-asylum, often anti-immigrant “assembly line” approach to justice and its chronic, backlog-building“Aimless Docket Reshuffling” produced by attempting to please DOJ politicos at the expense of justice. Bureaucratic metrics and bogus DOJ and Administration political goals and agendas are meaningless in the “real world.”
What kind of “short and long-term strategies” will work in a struggling “court” system plagued by a burgeoning 1.8 million case backlog, endemic “Aimless Docket Reshuffling,” an appellate body stuck in reverse, a byzantine “agency management” structure, institutionalized “worst practices,” and too many judges who were the product of a poor selection process and inadequate training? There are some measures that potentially could succeed. But, “Team Garland” has pointedly ignored them with predictably bad consequences.
No one person can change the disastrous trajectory of EOIR. But, someone willing to take risks and give due process and fundamental fairness a chance could make a difference in the lives of the most vulnerable among us. Could Judge Cheng be that person? We’ll see.
Subject: [bog] PLEASE SHARE: New AILA Think Immigration video blog post with Jeremy McKinney and Greg Chen regarding immigration court reform (includes sample tweets and posts).
Good afternoon everyone,
We are really excited that this week the House Judiciary Committee is scheduled to mark up the Real Courts, Rule of Law Act of 2022 – introduced by Rep. Lofgren to establish an independent immigration court system which we’ve been working for steadily for years now. The markup hearing will cover a lot of different bills so we may see the bill come up today, or more likely tomorrow. To watch the hearing, keep an eye on the hearing livestream page: https://judiciary.house.gov/calendar/eventslisting.aspx?EventTypeID=216
The AILA Comms Team produced a video in which Jeremy McKinney and Greg Chen talk through the immigration court’s problems and the need for a real solution in order to ensure judicial independence and due process. We have embedded the video as a blog post and would love to have you amplify it to your networks on social media.
I’ll be watching to see the House Judiciary Committee mark up the Real Courts, Rule of Law Act which would create an independent #immigration court this week. WATCH this video with @MckJeremy and @GregChenAILA for a helpful intro: http://ow.ly/oqap50IB7Cp @AILANational
Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH @AILANational’s @MckJeremy and @GregChenAILA explain: http://ow.ly/oqap50IB7Cp
Sample Facebook/LinkedIn posts:
I’ll be watching to see how the Real Courts, Rule of Law Act introduced by Rep. Lofgren fares as the House Judiciary Committee discusses how to create an independent #immigration court but in the meantime, this video with AILA President-Elect Jeremy McKinney and Greg Chen serves as a helpful intro: http://ow.ly/oqap50IB7Cp
Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH AILA’s President-Elect Jeremy McKinney join Greg Chen to explain:
Yup, it’s a great settlement! But, only for those in the CDCA or who don’t understand how totally screwed up, unfair, directionless, visionless, and out of control Garland’s “Clown Courts” 🤡 are!
So, Garland agrees that “his judges” will comply with the Constitution, but ONLY in the CDCA. In the other 95% of Immigration Courts nationwide, they evidently are free to choose to act in a “normal” arbitrary and capricious unconstitutional manner. Nice!
Of course, by initially setting no bond or more than $10K in any case, DHS can unilaterally invoke the “regulatory clamper” (8 CFR 1003.19(i)(2)) to defeat any release on bond pending appeal. Since the BIA routinely holds bond appeals until the detained merits cases are complete, then dismisses them as “moot,” the Administration retains lots of tools to act unconstitutionally.
Another nice touch!
Does anyone truly understand how completely screwed up and unconstitutional Garland’s “star chambers courts” are?
This is what “justice” looks like in 21st Century America, in a Dem Administration no less? Gimmie a break?
A better BIA might have imposed Constitutional due process requiring consideration of ability to pay nationwide, thus preempting the need for more Article III Court litigation and inconsistent decisions affecting the fundamental human right of liberty!
A “better BIA” might have properly limited the DHS’s unconstitutional authority to use the “clamper” to block release on bond, rather than reducing Immigration Judges to a “clerical” role. See, e.g.,Matter of Joseph (“Joseph I”), 22 I&N Dec. 660, 674 (BIA 1999) (Moscato, Board Member dissenting, joined by Schmidt, Chair, and Heilman, Villageliu, Guendelsberger, Rosenberg, Jones, Board Members).
A better AG might have eliminated the unconstitutional “clamper” that gives ICE counsel unfair leverage in bond cases.
For all the world, it looks like the BIA just signed off on a “canned language, rote denial” that had little or nothing to do with the actual record and the arguments raised on appeal. Apparently, as long as the bottom line is to “dismiss” the respondent’s appeal, what goes above it is largely irrelevant to the “Deniers’ Club” that Garland employs as “appellate judges.”
In a system already struggling with a largely self-inflicted backlog of 1.7 million cases, unnecessary remands caused by poor BIA performance are NOT a “no harm, no foul” proposition. Moreover, how in good faith can Garland propose to “expedite” asylum cases at the border when many of his trial judges possess neither the expertise nor the temperament to fairly and efficiently decide asylum claims and the Trump holdover appellate body charged with providing guidance, enforcing best practices, and guaranteeing fairness is itself a major part of the problem? That’s what “designed for disaster” is all about!
Wouldn’t it be refreshing to have an AG who made due process, fundamental fairness, correct results, and careful, “practical scholarly” analysis the touchstone of “his courts” and who cared enough about our justice system to appoint a BIA of real, expert judges — “practical scholars, if you will, of which there are plenty outside of EOIR — capable of focusing on and achieving the foregoing values?
Apparently, in his comfy 5th floor office at DOJ where he thinks great thoughts and does little to achieve them, Garland can’t put himself in the unnecessarily frustrating position of actual human beings and their lawyers who are subjected to EOIR’s incompetent nonsense and “judicial malpractice” on a regular basis! He doesn’t even seem capable of relating to the Courts of Appeals Judges who are constantly called upon to correct fundamental mistakes and clear injustices that Garland ignores and his DOJ attorneys mindlessly defend! Perhaps this “blind spot” is because on the DC Circuit, Garland was absolved from the task of reviewing individual petitions for review emanating from the dysfunctional Immigration Courts that he inherited from his White Nationalist predecessors.
Whatever the reason for his lackadaisical performance, America needs and deserves an AG who takes immigrant justice, racial justice, due process, and equal justice for all seriously!
