🇺🇸⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ CALLING NDPA PRACTICAL SCHOLARS/EXPERTS: NOW’S YOUR CHANCE TO BECOME A BIA APPELLATE IMMIGRATION JUDGE AND HELP CHANGE THE TRAJECTORY OF AMERICAN LAW! — The “Supreme Court of Immigration” Needs Supremely Qualified, Expert Judicial Talent!

I want you — Don’t just complain about the awful mess @ the BIA! Get on the appellate bench and do something about it!
Public Domain

Summary

The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Learn more about this agency

https://www.usajobs.gov/job/733279200

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Although there was no formal announcement from EOIR, it appears that Appellate Immigration Judge William Cassidy has finally retired from the BIA. As many of you know, Judge Cassidy, appointed by AG Billy Barr, was notoriously hostile to asylum seekers and to a fair application of the generous well-founded-fear standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi. His “final” TRAC Immigration asylum denial rate as an Immigration Judge in Atlanta was an appalling and bone-chilling 99.1%! https://trac.syr.edu/immigration/reports/judge2022/00004ATD/index.html.

This is a chance for a “real judge” with impeccable academic knowledge, practical solutions, and actual experience representing asylum applicants in the EOIR quagmire to bring some long-overdue and absolutely essential positive, progressive, change to the BIA – a group overall known for its too-often stilted, sloppy, improperly pro-Government, “go along to get along,” “don’t rock the boat by standing up for due process and human rights” decision-making.

The BIA’s lousy performance on the “stop time rule,” where they were twice rebuked by the Supremes for ignoring the language of the statute and the Court’s own holdings, is a classic example of why we need fundamental change at the top of EOIR. This substandard performance generated more unnecessary backlog and “Aimless Docket Reshuffling” in a system that can ill afford it (2 million case backlog). It also created unnecessary confusion and uncertainty in a situation where clarity was both required and achievable. I daresay, it’s hard to imagine any NDPA “practical scholar” getting sidetracked the way the BIA did in its misguided rush to please DHS Enforcement and its political “handlers” at DOJ!

Also, because of “jurisdiction stripping” legislation over the years, limiting the review of the Article IIIs in many areas, the BIA often represents the last realistic chance for individuals to obtain justice and fair treatment! That the BIA too often acts like an “assembly line,” doesn’t diminish its potential to become part of the solution rather than a source of further problems and unfairness.

Don’t let this important Federal Judgeship, with real life or death power over the lives of individuals and the future of our democracy, go by default to another “insider” or asylum denier.

I hear complaints from practitioners nationwide about the BIA’s poor scholarship and failure to issue realistic, positive guidance. But, it’s not going to change unless the “best and the brightest” from the NDPA apply for these critical jobs at EOIR and become agents of change.

Don’t let this chance go by to make a difference in the lives of others and to use your hard-earned expertise and practical skills to fundamentally change our failing U.S. judicial system — starting at the critical “retail level.”

The deadline is July 5, 2023, conveniently during the July 4 holiday. But, don’t let mindless bureaucratic tactics and feeble efforts at recruitment deter you. Force the USG to recognize and employ “judicial excellence” – once the “vision” of EOIR (before “good enough for government work” became the motto). I urge well-qualified minority candidates to apply for this key position!

🇺🇸 Due Process Forever!

PWS

06-23-23

⚖️🗽🇺🇸👩🏻‍⚖️BREAKING: GREAT NEWS FOR DUE PROCESS! – McHenry Ousted @ EOIR, Replaced By Highly Competent, Due-Process-Oriented Professional Judicial Administrator Jean King (Acting) – McHenry Led Miller/Hamilton “Weaponization” Of EOIR, Interference With Judicial Independence, Anti-Asylum White Nationalist Agenda, War On NAIJ & Lawyers, Creation Of 21st “Century Star Chambers” — Gross Mismanagement Helped Artificially “Jack Backlog” To Astounding 1.3 Million Cases With Thousands Of Others Likely “Lost in Space” In EOIR Chaos & Dysfunction!

McHenry informed EOIR employees last Friday that he was returning to his position as an OCAHO Administrative Law Judge. Can’t imagine there were too many tears shed, except within the “inner circle” of the “EOIR kakistocracy.”

OCAHO has long been viewed as EOIR’s “Siberia equivalent” and has been used to “exile” other “out of favor” Senior Execs in the past (ironically including King). Given OCAHO’s traditionally rather limited docket, it appears that McHenry’s ability to further damage our justice system and demean humanity will be restricted.

Notably, he was appointed Director by former Attorney General and notorious child abuser Jeff “Gonzo Apocalypto” Sessions without any known qualifications to manage one of America’s largest, most important, and totally screwed-up court systems. Over his four-year tenure, he proved to be every bit as unqualified for the job as his embarrassingly-thin resume originally suggested he would be.

He was part of the remarkably unqualified aptly-named “Atlanta Mafia” at EOIR. They degraded justice and humanity in equal portions as part of their nativist crusade to expand the “Atlanta Asylum Free Zone” nationwide. Basically, only the courageous hard work of talented immigration advocates stopped their nefarious program from reaching its objective, although that’s not to minimize in any way the lasting damage they did to our legal system and human lives.

Among McHenry’s many negative achievements was driving already-low EOIR morale and poor working conditions to depths never before seen or imagined. And, that was for his own employees! Imagine what it was like for foreign nationals and their courageous, determined, yet beleaguered attorneys consigned to this “hell on earth” specially designed to chew up lives and degrade humanity as part of as vile “strategy” to use “courts as deterrents” to those with audacity to seek justice in America.

Jean King, by contrast, is an experienced public servant known for her commitment to due process, fundamental fairness, sound scholarship, ethical standards (something that has “gone AWOL” at the DOJ over the past four years), and the “lost art of good government” which the Biden-Harris Administration appears committed to re-establishing.

Jean served on the on the BIA staff when I was Chair. She advanced in EOIR during the tenure of the late Juan Osuna as BIA Chair and then Director. She reportedly chose “exile to OCAHO” after she refused as General Counsel to “go along get along” with some of McHenry’s more outrageously illegal regulatory/administrative moves. He also retaliated by cutting the authority of the OGC and assigning it instead to his bogus “Office of Policy.” (Talk about “fraud, waste, and abuse” of government resources –- while the Immigration Courts lacked, and still lack, a functioning e-filing system, McHenry found time and resources for shenanigans like this, obscene “Immigration Judge dashboards,” and pursuing “decertification” of the NAIJ which had “blown the whistle” on his “maliciously incompetent” management!)

McHenry’s continuing presence as Director following the inauguration and his “in your face audacity” in issuing memos attempting to define “judicial independence” as obedience to the White Nationalist restrictionist agenda he had been implementing rightly drew outrage from all immigration experts who understand the ongoing contempt for due process and abuses of humanity that have somehow become “institutionalized” as “acceptable behavior” at EOIR during the last four years. https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053

If nothing else, Jean King should be able to stop the flood of illegal regulations, false and misleading policy memos and bogus “fact sheets,” and further deterioration of due process until “Team Garland” gets its “EOIR Reform Group” in place.

All of us who care about American justice and due process should be heartened that somebody on the Biden Team is aware of the due process disaster at EOIR, has taken bold, decisive action, and apparently plans to fix it, sooner rather than later!

Here is Jean’s bio from the EOIR website:

Jean King
Chief Administrative Law Judge

Jean King was appointed as the chief administrative law judge in June 2019. Immediately prior to assuming her current duties, she served as general counsel of the Executive Office for Immigration Review (EOIR) beginning in September 2015. Ms. King received a bachelor of arts degree in 1988 from Brown University and a juris doctorate in 1995 from the College of William and Mary. From July 2015 to August 2015, and previously from December 2012 to October 2014, Ms. King served as deputy general counsel, EOIR. From November 2014 to June 2015, she served as acting general counsel, EOIR. From October 2011 to December 2012, she served as a counsel to the director, EOIR. From March 2011 to October 2011, she served as acting director of operations, Board of Immigration Appeals (BIA), EOIR. From 2009 to March 2011, Ms. King served as a temporary board member, BIA. From 2006 to 2009, she was a senior legal advisor at the BIA. From 1996 to 2006, she served as an attorney advisor at the BIA. Prior to joining the BIA, Ms. King spent one year as a judicial law clerk with the Superior Court of Connecticut. Ms. King is a member of the Connecticut and New York State bars.

Good luck Jean! Please don’t forget the “Old EOIR Vision” that used to at the top of our internal web page– “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” It’s still the right vision for EOIR and America, and with the right team, in place, it still can be achieved!

Due Process Forever!

PWS

01-27-21

TIMING IS EVERYTHING: DURING CRISIS, BIA MAKES TIME FOR A LITTLE GRATUITOUS CRUELTY: What Could Be Better During Worldwide Pandemic & Humanitarian Disaster Than An Attempt To Narrow The Criteria For Cancellation & Deport To Guatemala A Long-Time Resident With Five U.S.C. Kids, Three With Health Issues, & An LPR Mother With Hypertension? — Matter of J-J-G, 27 I&N Dec. 808 (BIA 2020)

https://www.justice.gov/eoir/page/file/1264601/download

Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020)

BIA HEADNOTE:

1) The exceptional and extremely unusual hardship for cancellation of removal is based on a cumulative consideration of all hardship factors, but to the extent that a claim is based on the health of a qualifying relative, an applicant needs to establish that the relative has a serious medical condition and, if he or she is accompanying the applicant to the country of removal, that adequate medical care for the claimed condition is not reasonably available in that country.

(2) The Immigration Judge properly determined that the respondent did not establish eligibility for cancellation of removal because he did not demonstrate that his qualifying relatives will experience hardship, including medical, economic, and emotional hardship, that rises to the level of exceptional and extremely unusual.

PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Appellate Immigration Judges

OPINION BY: Judge Garry D. Malphrus, Acting Chairman

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Getting beyond the BIA’s disingenuously rosey description of life in Guatemala, here’s what really happens to families sent back to Guatemala in the “time of plague.” https://www.theguardian.com/us-news/2020/apr/02/deported-coronavirus-ice-family-separations?CMP=Share_iOSApp_Other

Here’s an excerpt:

María looked for work as a waitress as soon as she arrived. She knocked on the doors of 15 restaurants and was rejected each time. “Right now, no one is hiring workers, they’re firing people,” María said. Under the lockdown, she has had to put her search on hold.

María’s options in Guatemala are limited, particularly since it is not safe for her to go back to her home town. She and her little girl fled Guatemala for the US in late 2018 after the same gang that murdered María’s entire family over a land dispute, including the little girl’s mother, killed María’s partner and shot at María. Last summer, a US immigration judge found María’s account credible but decided her case did not meet the narrow legal standard for asylum. María filed an appeal but could no longer endure being locked up away from her niece. Because she was not the girl’s biological mother, Ice refused to release her from detention to reunite the family. After nearly a year apart, María requested deportation with the hope she and the girl could return together.

“It was notably easier for Ice to concede the bona fides of the relationship between María and her niece when removal to Guatemala was the goal,” said Suzannah Maclay, María’s attorney.

‘It is beyond cruel’: Ice refuses to reunite girl with the only family she has left

María was craving freedom after so long in detention but still finds herself spending her days inside. She wants her niece to go to school and get the education she never got. She feels restless, unable to start building a better life for them both. “I can’t do anything,” she said.

She believes the gang that murdered her family still wants to kill her, and she is always fearful they will discover she is back. She doesn’t want her niece to grow up alone. She tries to give the girl a sense of security, but the truth is hard to hide. “Why did they send us here?” the girl asked her upon arriving in Guatemala. “It’s too dangerous.”

As María and her child focus on day-to-day survival, they are also trying to heal from the trauma of their separation. Sometimes the girl tells María about foster care in New York. The stories are hard to hear. The girl describes getting her hands slapped when she touched things or being scolded in restaurants. “They humiliated her,” María said.

“Mami, I missed you so much,” the girl tells her. “I don’t ever want to be apart again.” María responds with a promise: “This won’t happen again.”

Now, a real appellate court, with qualified judges acting independently, might have used this as an opportunity to direct that Immigration Court hearings in all “non-criminal” cancellation of removal cases be deferred until such time as we can understand what is actually happening in Guatemala and other countries after the worldwide pandemic is brought under control.

After all, the situation is rapidly evolving. Or, I should say devolving! What’s the purpose of holding “trials” on conditions in foreign nations that are likely to change materially on a weekly or even daily basis?

Just look at the difference between the impact of the coronavirus in the United States one month ago and what is happening today. A month ago, folks were strolling the beaches of Florida and our President was basically minimizing the potential impact. Now there are over 10 million Americans out of work, three-fourths of the country under “stay at home” orders (except for Immigration Court), with nearly 200,000 reported cases, and “best case” predictions of several hundred thousand deaths!

So, why would any rational person think, like the BIA does, that things will be “hunky dory” for those deported to Guatemala, particularly if they choose to take their U.S.C. children? Why would a poor corrupt country with a limited economy and few resources fare better than the world’s richest nation in weathering this crisis? When hospitals are breaking down all over the U.S., why would health care be readily available to recent returnees in Guatemala? With 10 million out of work here, why would jobs to support a family of five be readily available in Guatemala? The BIA’s decision in this case is as “counterfactual” as it is needlessly cruel!

Looking at it from a factual, legal, public health, or humanitarian viewpoint, the BIA’s timing and decision in this case were totally irresponsible.

We need an independent U.S. Immigration Court with better, more responsible, and more humane judges.

Due Process Forever! Captive Courts Never!

PWS

04-02-20

BIA: ANY OL’ NOTICE IS GOOD ENOUGH FOR ENDANGERED ASYLUM SEEKERS ORBITED TO MEXICO & BEYOND – MATTER OF J.J. RODRIGUEZ — How Judges At All Levels Are Abandoning The Rule Of Law & Enabling Abuse Of the Most Vulnerable!

http://go.usa.gov/xdDRq

Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020)

PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board Members.

OPINION BY: Acting Chairman Malphrus

BIA HEADNOTE:

Where the Department of Homeland Security returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing.

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Let’s put this in context!

This is an unrepresented asylum seeker “orbited” back to dangerous and chaotic conditions in Mexico. We don’t even know if he’s still alive.

He’s a native of Honduras. Obviously, he fled Honduras and sought admission to the United States for a reason. His only chance of not being returned to Honduras would be to show up for his hearing. Therefore, he would have no obvious reason for failing to appear at his hearing if he were able to do so.

In the past, in cases such as this, the DHS would have either: 1) released the respondent on bond to a known address in the United States that they would have recorded and furnished to EOIR; or 2) detained the respondent.

In the former case, the DHS would have been obliged to provide EOIR with a facially valid address to serve notices at the time of filing the Notice to Appear with the court. In the latter case, the DHS would be responsible for producing the respondent for all scheduled hearings.

Instead, in this case, the DHS chose under the mis-named “Migrant Protection Protocols” (“MPP”) (which are actually designed to reject rather than protect migrants) to abdicate its normal duties and send the respondent to an unknown location in Mexico without any reasonable safeguards to insure access to the hearing process or to counsel.

The DHS has no practical idea where they sent the respondent in Mexico and no reasonable method for contacting him or retrieving him.

Incredibly, and apparently with a straight face, the BIA lists the address of the respondent as “Domicilio Conocido, Tijuana, Baja California, Mexico.” That’s roughly the equivalent of “Manhattan, New York City, New York, USA.” Good luck with that!

How would a U.S. lawyer get in touch with the respondent? How would the Immigration Court notify the respondent of the ever-changing times and dates of hearings? How would the DHS serve the respondent with notices of evidence? Obviously, they wouldn’t.

And, if the respondent failed to appear for a non-existent hearing, he undoubtedly would be “in absentia’d” under the BIA’s warped view of what is fair and reasonable. This whole MPP has obviously been constructed by DHS, with EOIR complicity, as an exercise in naked bad faith and intentional and unreasonable inconvenience to the respondents caught up in it.

In formalizing the MPP, the DHS could have worked cooperatively with the Mexican Government and the private bar to guarantee the respondent’s statutory rights to: 1) return to the United States for his removal hearing; and 2) reasonable access to pro bono counsel in the United States. The DHS chose not to do either, thereby leaving these statutory obligations potentially unachievable for this respondent. Through the BIA’s mental gymnastics, the DHS’s intentional indolence becomes the respondent’s problem!

It’s common knowledge that individuals returned to Mexico under the MPP are often forced to live on the streets and are in constant danger of kidnaping, extortion, robbery, rape, assault, starvation, and exploitation while in Mexico awaiting hearings.

There also are credible reports that some individuals returned under the MPP are sent to the interior of Mexico, to the Southern Border of Mexico, or returned to their home countries, thus making it impossible for them to appear for their scheduled hearings. See,e.g., https://www.latimes.com/world-nation/story/2019-10-15/buses-to-nowhere-mexico-transports-migrants-with-u-s-court-dates-to-its-far-south, “Mexico sends asylum seekers south — with no easy way to return for U.S. court dates.”

The DHS makes no effort to ascertain what happens to those sent back to Mexico under the MPP and takes no steps to insure that they are able to return to the U.S. border for their hearings.

The DHS has provided no reason to believe that individuals “relocated” after returning to Mexico either understand what is happening to their hearing rights or have any realistic mechanism for retuning.

Under these circumstances, there is a rebuttable presumption that individuals returned under the MPP who do not appear for immigration hearings have been denied both their statutory right to the hearing process and their statutory right to representation by counsel of their own choosing at no expense to the Government. These statutory rights are integral to insuring due process in the removal hearing process.

The DHS may rebut this presumption by showing either: 1) they made reasonable efforts to locate this respondent in Mexico; or 2) there are reasonable procedures in place with the Mexican Government and with pro bono providers to provide reasonable access to hearings and pro bono counsel that were available to the respondent in this case.

Since the DHS has made no such showing in this case, the Immigration Judge’s decision to terminate the proceedings without an in absentia order is reasonable and proper under the law. Indeed, it is the only lawful outcome.

This is especially true because there doesn’t appear to be any effective way an individual who was inhibited from return to the United States from Mexico for his hearing can seek to reopen an in absentia hearing from Mexico or some other country to which he might have been “orbited” by the Mexican Government.

Indeed, the process followed by the DHS in this case appears to be an intentional derogation of the normal statutory right to a stay of removal from the United States to which an individual challenging an in absentia removal order ordinarily would be legally entitled.

This is, of course, without prejudice to the DHS reinstituting removal proceedings in the future if the respondent is encountered at the border or in the United States.

Sadly, the BIA isn’t the only tribunal to “blow off” their statutory and constitutional responsibilities.

The feckless judges of the Ninth Court of Appeals “took a dive” on their oaths of office by “greenlighting” the illegal (not to mention totally dishonest and immoral) MPP by vacating the District Court’s properly issued preliminary injunction in Innovation Law Lab v. McAleenan.

As a result of the Ninth Circuit’s dereliction of duty, thousands of vulnerable asylum seekers have been irreparably injured.

Eventually, the MPP will go down as not only fraudulent and invidiously racially motivated, but as one of the most horrible, and preventable, failures of justice in modern American jurisprudence. It will rank right up there with Dred Scott., the Fugitive Slave Laws, “separate but equal,” Chinese Exclusion Laws, and Japanese internment of supposedly bygone ages. Dehumanization, exploitation, and abuse of Government authority is a common theme. It will indelibly stain the reputations of every bureaucrat and judge who touched it without “just saying no.”

While it might already be too late for many of the innocent victims of MPP, no amount of legal gobbledygook or “alternative facts” will save those responsible for initiating, carrying out, and enabling the MPP and similar violations of legal, constitutional, and human rights, and well as human morality, from the judgments of history!

Due Process Forever; Complicit Courts Never!

PWS

01-31-20

THE KEY TO “JUDICIAL” ADVANCEMENT IN BARR’S BIASED, NATIVIST POLITICAL REGIME: DENY ALL ASYLUM CASES — Regime Flaunts “Generous” Standard Established By Supremes In Cardoza-Fonseca, Mocks Due Process — A “Kakistocracy In Action!”

Bryan Johnson, Esquire
Immigraton Attorney
New York, NY

https://amjolaw.com/2019/12/24/immigration-judges-asylum-grants-denials-in-fy-2018-2019/

Immigration Judges Asylum Grants & Denials in FY 2018-2019

by Bryan Johnson on December 24, 2019

After over 7 months, EOIR finally provided the Immigration Judges’ asylum grants and denials for FY 2018 and FY 2019, respectively.

To see the same statistics from FY 2014 to FY 2017, see this previous post. (which took less than 1 month for responsive records)

Of note is the asylum grants and denials for the 6 Immigration Judges who AG William Barr hand-picked for the Board of Immigration Appeals in 2019:

2 of the 6 new BIA members–Hunsucker and Cassidy–denied all their asylum cases in FY 2019.

All 6 of the new BIA members had asylum grant rates of below 10% in FY 2019.

Judge Gorman and Goodwin’s asylum grant rates dropped precipitously in FY 2019–from 14% to 3% and 9% to 3 %, respectively.

Immigration :

FY 2018: 210 asylum denials. 3 asylum grants. Grant rate: 1.4%

FY 2019: 166 asylum denials. 9 asylum grants. Grant rate: 5%

Immigration Judge Earle Wilson:

FY 2018: 226 asylum denials. 9 asylum grants. 3.8% grant rate.

FY 2019: 110 denials. 3 asylum grants. 2.6 % grant rate.

Immigration Judge William Cassidy:

FY 2018: 24 asylum denials. 1 asylum grant. 4% grant rate.

Bryan Johnson, Esquire
Immigraton Attorney
New York, NY

FY 2019: 40 asylum denials. 0 asylum grants. 0% grant rate.

Immigration Judge Keith Hunsucker:

FY 2018: 19 asylum denials. 0 asylum grants. 0% grant rate.

FY 2019: 35 asylum denials. 0 asylum grants. 0% grant rate.

Immigration Judge Stephanie Gorman:

FY 2018: 174 asylum denials. 30 asylum grants. 14.7% grant rate.

FY 2019: 281 asylum denials. 11 asylum grants. 3.76% grant rate.

Immigration:

FY 2018: 302 asylum denials. 33 asylum grants. 9.85 % grant rate.

FY 2019: 177 asylum denials. 6 asylum grants. 3.27% grant rate.

For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.

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Go to the link for complete individual Immigration Judge asylum stats.

The idea that a “court” system is providing “fair and impartial” decisions to asylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!

Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.

That suggests that under a fair and impartial judicial system asylum seekers could and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.

The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.

Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremes have taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.

Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.

With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?

In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:

“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).

Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”

Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.

Due Process Forever; Corrupt, Complicit Federal Courts Never!

PWS

12-28-19

BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.

Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.

Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.

For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect. It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.

Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.

In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.

This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.

The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.

Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.

Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.

Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.

Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.

Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.

Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.

However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.

Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.

They are some of the last disappearing remnants of what EOIR could have been under different circumstances. Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.

PWS

11-07-19

CORRUPTED “COURTS” – No Stranger To Improper Politicized Hiring Directed Against Migrants Seeking Justice, DOJ Under Barr Doubles Down On Biased Ideological Hiring & Promoting “Worst Practices”– “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted . . . .”

https://www.miaminewtimes.com/news/trump-officials-appoint-miami-immigration-judge-deborah-goodwin-to-top-appeals-court-11310052

Manuel Madrid reports for the Miami New Times:

Trump Officials Give Permanent Promotion to Asylum-Denying Miami Immigration Judge

MANUEL MADRID | NOVEMBER 1, 2019 | 11:00AM

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A Miami immigration judge with less than two years of experience on the bench was fast-tracked for a permanent position on the nation’s highest immigration court. The move has raised concerns about politicized hiring at the Justice Department.

Deborah Goodwin was one of six judges handpicked by Justice Department officials to fill vacancies on the Board of Immigration Appeals (BIA), a 21-member appellate court that sets binding legal precedents for more than 400 immigration judges serving in the nation’s 57 immigration courts. These six judges, who have little in common other than their markedly high rates of asylum denial, were permanently added to the board in August without undergoing any probationary period, according to documents obtained through Freedom of Information Act requests by the investigative website Muckrock.

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Memos sent to the office of Attorney General William Barr in July reveal that the Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, adopted new hiring procedures in March to evaluate candidates. It was “EOIR practice” to appoint a board member temporarily and require that person to complete a two-year probationary period, but the agency now believes that a sitting immigration judge has “the same or similar skills” as an appellate judge and should therefore be immediately installed permanently. The memos, obtained by Muckrock and shared with CQ Roll Call, were written by EOIR Director James McHenry.

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“This is clearly a political move. There’s no question about it,” says Jason Dzubow, a D.C.-based immigration lawyer who runs the blog the Asylumist. “And there’s no way someone looking at the appearance of this can consider the hirings good for fairness in the immigration court system.”

Goodwin has a strong background in immigration enforcement: She worked as an associate legal adviser and assistant chief counsel for Immigration and Customs Enforcement. The judge, who presides over the court in Miami-Dade’s Krome migrant detention center, began hearing cases in 2017. As of the end of last year, she had an asylum denial rate of 89 percent, according to Syracuse University’s Transactional Records Access Clearinghouse. That’s far above the national average of 57 percent during the same period and almost 10 percentage points higher than the average for the Miami immigration court as a whole.

Of the six judges, Goodwin — who was appointed by former Attorney General Loretta Lynch — has received relatively little attention due to her limited time on the bench. Other appointees, such as Atlanta’s William Cassidy and Charlotte’s Stuart Couch, have been far more controversial. Cassidy, who had an asylum denial rate of 95 percent between 2013 and 2018, has been the subject of various complaints from immigration attorneys over the years. Couch, who had a rejection rate of 92 percent, issued ten rulings in 2017 that were found “clearly erroneous” by the Board of Immigration of Appeals. All ten of those of rulings involved the rejection of asylum claims by women who had been victims of domestic violence.

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In a recent interview with Dzubow, former U.S. Chief Immigration Judge MaryBeth Keller said the recent BIA hirings were “stunning.”

“I think [immigration judges] are generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that,” Keller told Dzubow. “I find these recent hires to be very unusual.”

Immigration judges, and appellate judges in particular, can come from a wide range of legal and professional backgrounds, although scandals of politicized hiring have cropped up in the past. In 2008, a report by the Office of the Inspector General revealed the George W. Bush administration had engaged in illegal hiring practices for years by selecting immigration judges based on their political views. Perhaps unsurprisingly, immigration judges selected during that time were found to have disproportionately denied asylum claims.

Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals, responded to the new appellate court appointments on his blog, immigrationcourtside.com: “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qaualifications [sic] of candidates who were passed over.”

Manuel Madrid is a staff writer for Miami New Times. The child of Venezuelan immigrants, he grew up in Pompano Beach. He studied finance at Virginia Commonwealth University and worked as a writing fellow for the magazine The American Prospect in Washington, D.C., before moving back to South Florida.

CONTACT:

Manuel Madrid

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OK, so I can’t spell or proofread. That’s why I’m a “gonzo journalist.” (I actually went back and corrected the spelling after seeing Manuel’s article. But, it definitely was in the original posting.)

Every time a Court of Appeals signs off on a “removal order” generated by these blatantly unconstitutional (not to mention unqualified) “courts” that violate Due Process every day in numerous ways, those Article III Judges are betraying their duties to uphold the Constitution.

Manuel’s article also sheds some light on the opaque hiring practices of the Obama Administration under AG Loretta Lynch. Not only did Lynch incompetently administer the mechanics of Immigration Judge hiring — approximately two years to fill an average IJ vacancy (ridiculous) & dozens of open positions negligently left “on the table” for Sessions — she consistently filled the courts with “go along to get along government insiders” to the exclusion of many better qualified candidates from the private bar who could have added to the dialogue much-needed scholarship (particularly in the asylum and Due Process areas) and a more practical understanding of the predicament of asylum seekers.

Of course, some Government attorneys make outstanding, fair, scholarly Immigration Judges. I recommended numerous well-qualified INS and DHS attorneys for such appointments over the years, along with many from private practice and academia. But, along the lines of what former Chief Judge Keller said, Government attorneys can’t essentially be the “sole source” of judicial appointments.

To a large extent, Sessions and Barr have “weaponized” and accelerated Lynch’s already one-sided exclusionary hiring practices. While Lynch apparently didn’t want to “rock the boat” with any possible “pushback” while she promoted some of the Obama Administration’s worst anti-asylum policies and practices, including family detention, “Aimless Docket Reshuffling,” and forcing toddlers to “litigate” in court, Sessions and Barr intend to “sink the boat” with all migrants on board!

Toxic as the GOP’s hiring practices and manipulation of the process have been under Bush and Trump, they at least understand the potential impact of who sits on the Immigration Courts and the BIA, and act accordingly. By contrast, the Democrats have been lackadaisical, at best, and inept at worst, in appointments to the Immigration Judiciary.

Under Obama, the Democrats. loved to complain that Mitch McConnell stood in the way of judicial appointments. But, given a chance to positively reshape an entire court system, perhaps the most important if least respected and appreciated courts in America, without any Congressional interference or roadblocks, they dropped the ball. And that explains lots of today’s atrocious dysfunction in the immigration justice system.

Assuming that we someday get much needed “regime change,” an independent U.S. Immigration Court must be the number one priority. The Dems could have gotten the job done in 2008. Their failure to do so has caused untold human suffering, including needless deaths, and a potentially fatal degradation of our entire justice system. Never again!

PWS

11-01-19

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

Tanvi Misra reports for Roll Call:

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the border DHS advances plan to get DNA samples from immigrant detainees White House plans to cut refugee admittance to all-time low

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James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

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The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “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.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21^st Century America?

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”

We’re in a war for the survival of our democracy and the future of humanity. There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

PWS

10-31-19

WELCOME TO A NEW BRIGADE OF THE NEW DUE PROCESS ARMY: Justice Action Center! — Litigate, Litigate, Litigate — Constantly Confront Complicit Courts 4 Change!

Karen Tumlin
Founder
Justice Action Center

Karen Tumlin, Founder

Karen Tumlin is a nationally recognized impact litigator focusing on immigrants’ rights. She successfully litigated numerous cases of national significance, including a challenge to the Trump Administration’s effort to end the DACA program and the Muslim Ban, as well as the constitutional challenge to Arizona’s notorious anti-immigrant law, SB 1070. She formerly served as the Director of Legal Strategy and Legal Director for the National Immigration Law Center, where she built a legal department of over 15 staff who developed and led cases of national impact.

Contact Karen: karen.tumlin@justiceactioncenter.org

https://justiceactioncenter.org/

A Brief Description of JAC

Justice Action Center is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. There is tremendous unmet need in the litigation landscape for immigrant communities. JAC is committed to bringing additional litigation resources to bear to address unmet needs in currently underserved areas. There is also untapped potential in how litigation can be combined with digital strategies to empower clients and change the corrosive narrative around immigrants. Communications content around litigation that focuses primarily on putting forward legal voices to talk about immigrants does not have the same authentic voice as putting forward immigrants as the protagonists. JAC will focus on the creation of original content that amplifies immigrant voices. We believe that real change will come only when a larger base of supporters are activated on immigration issues—only then will courthouse wins pave the way for lasting change. JAC will partner with direct service providers and organizers to leverage the power of the existing landscape of immigrants’ rights organizations and also to fill in holes where impact litigation should be brought (but currently isn’t), or where communications and digital expertise could help reshape the narrative around immigration and immigrants.

The Problem

Urgent, Unmet Legal Need in the Immigrants’ Rights Field

Impact litigation has been an essential tool in blunting the Trump administration’s abuses against immigrants—but capacities are stretched thin and deployed unevenly. As a result, important civil rights abuses are going unchallenged.

Lawsuits attract media attention at key moments, but little planning is done to drive the narrative. Deliberate, client-driven communications plans are needed to maximize these moments to engage new audiences on immigration

Unequal Treatment

Precious impact litigation resources are currently being spread unevenly. While there is a deep bench of attorneys ready to take on high-profile issues, such as the termination of DACA or the latest asylum ban, other issues appear to have no legal advocacy. Examples include the massive worksite raids in underserved states such as Ohio and Texas or the severe abuses immigrants face in the nation’s vast detention system.

Underrepresented in Digital Media

There is a paucity of original, immigrant-centered digital content. The nation’s narrative no longer has to be set only by policymakers—it can be shaped by everyday people, including immigrants. We have not harnessed the power of the current digital landscape to promote pro-immigrant messages and engage new audiences.

JAC’s Solutions

1. Litigate on topics and in locations of unmet need.

2. Create original, immigrant-centered content designed to activate new audiences

3. Partner with direct services providers and organizers to elevate movement impact.

Get Involved

You can be part of helping build Justice Action Center.

Donate to Justice Action Center’s first year now.

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Welcome Karen and the JAC to the fight for Due Process, fundamental fairness, and human decency! Nothing less than the survival of our nation, and perhaps civilization, is at stake here!

The litigation angle is so critically important to this all-out war! The Federal Appellate Courts, and particularly the Supremes, have been largely complicit in Trump’s White Nationalist attack on the Rule of Law. There is no excuse whatsoever for the continuing unconstitutional outrages against individuals being committed by a biased Immigration Court System unlawfully controlled by biased and corrupt politicos.

Would a Federal Appellate Court Judge or a Supreme Court Justice agree to be tried for his or her life in a “court” before “judges” controlled by their prosecutor? Of course not! So why is it “Constitutionally OK” for asylum seekers and other vulnerable individuals to be “tried” (often without lawyers or even “in absentia”) by “judges” controlled by Trump, Barr, and indirectly McAleenan? Why it “Constitutionally OK” for individuals whose only “crime” is asserting their legal rights to be detained indefinitely (sometimes until death) in conditions that would be held unconstitutional in an eyeblink if applied to convicted criminals?

Think I’m making this up? Check out he dissent by Justice Sotomayor (joined by Justice Ginsburg) in Barr v. East Side Sanctuary Covenant. There, seven of her spineless colleagues didn’t even bother to justify their decision lifting a lower court stay of a grotesque attack by the Trump Administration on the legal rights (and lives) of asylum seekers that violated the Constitution, a host of statutes and regulations, and international standards. Not only that, but it also enables a lawless Solicitor General to continue to cynically “short-circuit” the legal system and go directly to what Trump and his followers (contemptuously, but apparently correctly) believe to be a thoroughly compromised Supreme Court. https://immigrationcourtside.com/2019/09/11/supreme-tank-complicit-court-ends-u-s-asylum-protections-by-7-2-vote-endorses-trumps-white-nationalist-racist-attack-on-human-rights-eradication-of-refugee-act-of-1980/

These consequences aren’t “academic.” Innocent individuals, including children, will die, be tortured, or have their lives ruined by the Supremes’ abdication of duty and abandonment of human decency. https://immigrationcourtside.com/2019/09/20/profile-in-judicial-cowardice-article-iiis-dereliction-of-duty-leaves-brave-asylum-applicants-and-their-courageous-attorneys-defenseless-against-racist-onslaught-by-trump-administration/.

Undoubtedly energized by this exercise in “Supreme Complicity,” the Trump Administration has released a dizzying barrage of new attacks on the legal rights and humanity of migrants of all types, from asylum seekers to green card holders and immigrant visa applicants, in the weeks following East Side Sanctuary.

Or, check out this dissenting statement of Eleventh Circuit Judge Adelberto Jose Jordan in Diaz-Rivas v. U.S. Att’y Gen.:

In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.

So what’s the result of the Eleventh Circuit majority’s cowardly abandonment of the Fifth Amendment? In a spectacular “in your face” move undoubtedly meant to play on the spineless response of the Eleventh Circuit to the “Asylum Free Zone” created in the Atlanta Immigration Court, Billy Barr actually promoted two of the Atlanta judges with the highest asylum denial rates, renowned for their rude and disrespectful treatment of asylum applicants and their lawyers, to the Board of Immigration Appeals as part of his “court packing scheme” to promote worst practices and anti-asylum bias.

In other words, as a consequence of the Eleventh Circuit’s spineless complicity in the face of clear Due Process violations, these unqualified judges have now been empowered to abuse and refuse asylum applicants from coast to coast. Judicial corruption and complicity has real human life consequences for those trying to just survive below the “radar screen” of exalted overprivileged Ivory Tower Federal Appellate Judges.

The Ninth Circuit’s illegal “greenlighting” of the deadly “Let ‘Em Die in Mexico” program in Innovation Law Lab v. McAleenan is another egregious example of U.S. Court of Appeals Judges abandoning their oaths of office (and writing complete legal gibberish, to boot).https://immigrationcourtside.com/2019/05/07/fractured-9th-gives-go-ahead-to-remain-in-mexico-program-immigration-law-lab-v-mcaleenan/.

Every time an Appellate Judge signs off on a removal order produced without a fair and impartial adjudication in the unconstitutional Immigration Courts he or she is violating their oath of office. We’ve had enough! Why have life-tenured judges if they won’t stand up for our individual rights? It’s time to put an end to this cowardly judicial complicity in violation of our fundamental Constitutional rights (not to mention a host of statutory and regulatory violations that go unchecked in Immigration Courts every day).

That’s where the “5 C’s” come into play: Constantly Confront Complicit Courts 4 Change!

At the same time, make an historical record of those judges who “stood small” in the face of Trump’s vicious and corrupt assault on our Constitution and our democratic institutions, not to mention the lives and well-being of vulnerable migrants!

PWS

10-05-19

JUSTICE FARCE: BARR PACKS APPEALS BOARD WITH “JUDGES” KNOWN AS ANTI-ASYLUM ZEALOTS! — Body Charged With Insuring Impartiality & Due Process Now Serves As “Chief Persecutor” Of Asylum Applicants — This Is America?

https://apple.news/A4TEHyWG1TfmB-yGzUmx3YA

Noah Lanard reports for Mother Jones:

The Trump Administration’s Court-Packing Scheme Fills Immigration Appeals Board With Hardliners

In his first six years as an immigration judge in New York and Atlanta, from 1993 to 1999, William Cassidy rejected more asylum seekers than any judge in the nation. A few years ago,Earle Wilson overtook Cassidy as the harshest asylum judge on the Atlanta court, which has long been considered one of the toughest immigration courts in the country.

Now both men have been elevated to the Board of Immigration Appeals, which often has the final say over whether immigrants are deported, as part of a court-packing scheme by the Trump administration that is likely to make it even more difficult for migrants fleeing persecution to gain asylum.

Between 2013 and 2018, the average immigration judge in the country approved about 45 percent of asylum claims. The sixjudges newly promoted to the board have all approved fewer than 20 percent. Cassidy granted 4.2 percent of asylum claims. Another appointee, Stuart Couch, approved 7.9 percent. For Wilson, the figure was just 1.9 percent.

Paul Schmidt, who chaired the Board of Immigration of Appeals from 1995 to 2001, says the administration’s goal is to build a “deportation railway” in which cases move through the system as quickly as possible and then get “rubber-stamped by the Board.”

Until last year, the board had 17 members. The Trump administration expanded the board to 21 members, arguing it was necessary to handle an increase in appeals. That has allowed Attorney General William Barr to fill the panel with immigration hardliners. It’s reminiscent of President Franklin Roosevelt’s ill-fated 1937 effort to overcome Supreme Court resistance to the New Deal by adding up to six additional justices—only immigration courts are part of the Justice Department, giving the department the power to expand the Board and fill the new openings with judges sympathetic to the administration’s immigration crackdown.

The promotions of the six judges this month, first reported by the San Francisco Chronicle, are part of an intensifying effort to reshape immigration courts. Earlier this month, the Justice Department moved to eliminate the immigration judges’ union, which has been highly critical of the administration’s policies. On Monday, a regulation took effect that gives the head of the immigration courts, a political appointee, the power to decide appeals if judges do not hear them quickly enough. A rule that gives board members more authority to summarily deny appeals without issuing a full opinion takes effect on Tuesday.

Lawyers who have appeared before Cassidy, Couch, and Wilson say all three have intense tempers. All of them had many of their asylum denials reversed by the Board of Immigration Appeals. Now they’ll be the ones deciding those appeals. (The Justice Department’s Executive Office for Immigration Review, which oversees the immigration court system, did not respond to a request to comment on details in this story.)

Cassidy is most associated with his decision to deport Mark Lyttle, a US citizen who did not speak Spanish, to Mexico during a mass deportation hearing. One Georgia attorney I spoke to blamed Immigration and Customs Enforcement for Lyttle’s removal, but Lyttle asserted that he told Cassidy twice about his US citizenship.

Glenn Fogle, an Atlanta immigration attorney, concluded in 2001, “You could have Anne Frank in front of him and he would say it was implausible that she could have hidden in the house for years and not be caught.” Now he says his feelings about Cassidy haven’t changed. He described a recent case in which Cassidy rejected a Congolese client who said he had scars on his back from being persecuted in his home country. Cassidy, presiding via an aging video system, asked the man to lift up his shirt and show the scars, then said he couldn’t see them. “Judge, how on earth could you see anything with this video?” Fogle recalls asking. Cassidy denied the asylum claim, noting in his decision that he couldn’t observe the scars.

Peter Isbister, a senior attorney with the Southern Poverty Law Center, says Cassidy sometimes writes orders denying bond requests while Isbister is still opening his argument. If he tries to finish, Cassidy can get frustrated and say something like, “You can take it up with the board. We’re done!”

In 2010, Cassidy had an asylum denial overturned because he had written the ruling before the hearing even began. The next year, Cassidy sat down in another judge’s courtroom in his judicial robe. In what one observer described as a “surreal” scene, Cassidy then raised his hand and told how the judge how the case should be handled. Assistant Chief Immigration Judge Deepali Nadkarni admonished Cassidy for his “inappropriate conduct.” In 2016, Cassidy compared an immigrant arriving at the border to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.”

Cassidy and Couch have both suggested that asylum seekers are dishonest and trying to scam their way into the country. A Charlotte immigration attorney, who requested anonymity because Couch is now handling appeals, heard Couch say he believes 85 percent of asylum seekers are lying, that 10 percent are telling the truth but not eligible for protection, and that 5 percent are both honest and eligible for asylum. Couch is also skeptical of lawyers. When an out-of-state lawyer couldn’t make it to a hearing because of a funeral, Couch called the funeral home to verify the claim, according to the Charlotte attorney.

In 2004, Couch, then a military prosecutor, attracted widespread attention for refusing to prosecute a Guantanamo detainee because he had been tortured. But as an immigration judge, Couch has almost always ruled against people who say they’ve been persecuted. He is best known among immigration attorneys for his 2015 decision to deny asylum to a woman who said she had been repeatedly physically and sexually abused by her ex-husband. One year later, the Board of Immigration Appeals overturned Couch’s ruling and ordered him to grant her asylum. But Couch again declined to do so. The case gained prominence when Jeff Sessions, then the attorney general, used it to issue a sweeping precedent that made it much harder for asylum seekers to claim domestic violence as a reason for asylum. (Couch isn’t uniformly anti-immigration—Jeremy McKinney, a North Carolina attorney and the vice president of the American Immigration Lawyers Association, saw him lobby North Carolina Sen. Thom Tillis to greatly expand Central Americans’ access to temporary visas—but has a narrow view of who qualifies for asylum.)

Wilson has the highest asylum denial rate of the six new appointees. His most notable habit is leaning back in his chair while respondents are testifying and closing his eyes so that it looks like he’s sleeping. In one case, according to an observer from Emory University’s law school, Wilson leaned back with his eyes closed for 23 minutes as an asylum seeker described the murder of her parents and siblings.

Like the others, Wilson has often been overturned by the appeals board he is now a part of. In one case, he ruled against a victim of domestic violence partly on the grounds that she had been able leave her abuser and reach the United States. “We disagree,” the Board decided. “Although the respondent did ultimately come to the United States to escape her abuser, by definition, any person applying for asylum in the United States has fled the harm that they experienced.”

Under the regulation that goes into effect Tuesday, Board members will have more authority to summarily deny appeals without providing any justification. Charles Kuck, an Atlanta attorney and former president of the American Immigration Lawyers Associations, expects that to lead to an assembly-line system like the one that existed under the George W. Bush administration, when Board members sometimes issued more than 50 decisions a day.

Two decades later, one Cassidy case still sticks with Fogle. His client was a former Ethiopian government official. As he was telling his story, Fogle remembers, Cassidy jumped up, turned off the court’s audio recorder, and yelled, “Bullshit!” His client insisted he was telling the truth.

Fogle says it was among the most unprofessional behavior he has ever seen from a judge. “I’ve been around,” he says. “I will never forget that.” He adds, “That’s the guy that’s going to be adjudicating appeals from other immigration judges.

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

Sounds like a Third World kakistocracy to me. And, over my years working on asylum cases, I became familiar with many of those. Never imagined the U.S. would hit these depths.

PWS

08-29-19

HARD RIGHT TURN: Barr Appoints “Death Squad” Of New “Appellate Judges” Tasked To “Snuff Out” Any Last Remaining Pockets Of Due Process For Asylum Seekers & Send As Many As Possible Unlawfully Into Harm’s Way! — Judge Earle Wilson Has An Astounding 98.1% Asylum Denial Rate, But His New Colleagues Are Hot On His Tail! — TAL @ SF CHRON REPORTS!

Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/AG-William-Barr-promotes-immigration-judges-with-14373344.php

AG William Barr promotes immigration judges with high asylum denial rates

WASHINGTON — The Trump administration has promoted six judges to the immigration appeals court that sets binding policy for deportation cases — all whom have high rates of denying immigrants’ asylum claims.

The six come from courts that have higher asylum-denial rates than the national average, including two from a court that has drawn complaints of unfair proceedings from immigration attorneys and advocates. A third has a long history of denying asylum to domestic violence victims, something the Justice Department has also sought to do.

The new appeals judges, who will now make up more than a quarter of the appellate board, were appointed as the administration works to speed up the immigration courts and narrow migrants’ use of asylum cases to come to the U.S. The six new appointees were sworn in Friday.

The hires are in a new role, in which judges will be allowed to continue serving at any immigration court in the country rather than having to move to suburban Falls Church, Va., where the appeals board’s headquarters are. The new appeals judges will also be allowed to serve as fill-in lower court immigration judges. Critics had suspected the Justice Department, which oversees the immigration courts, created the new positions to pack the board with judges from courts with high rates of denying immigrants’ claims, who may otherwise not have wanted to move to D.C.

The board serves as the appellate body for the immigration court system, an entity separate from the federal courts.

As in the federal system, the immigration board has the power to overrule lower court decisions with three-judge panels. By a majority vote of all its 21 members, it can make those rulings binding on the nation’s nearly 400 immigration judges. Recently, Barr published a new regulation giving himself the power to make any appellate decision binding as well.

By law, the Justice Department is barred from considering political leanings when hiring judges. Agency officials say judges are selected based only on their qualifications for the job, and that their history of rulings is not taken into account.

According to data tracked by Syracuse University from 2013 through 2018, all the judges promoted Friday have records of denying asylum at much higher rates than immigration judges nationally. The Justice Department has in the past questioned Syracuse’s methodology, but does not provide statistics of its own.

Two of the new appeals judges were promoted by Barr from the Atlanta immigration court, which has one of the highest rates of asylum claim denials in the country. The court rejected 95.3% of claims from 2013 to 2018, compared with a national average of 57.6%, Syracuse found.

One of the two new appeals judges from Atlanta, William Cassidy, had a rejection rate of 95.8%, 22nd highest in the country.

Cassidy was also the subject of 11 complaints from immigration attorneys from 2010-2013, according to material obtained by the American Immigration Lawyers Association through a Freedom of Information Act lawsuit. That number of complaints was more than roughly 95% of all other immigration judges in that period, according to information from the lawsuit. Five of the 11 resulted in Cassidy being counseled by a superior on proper judicial behavior.

Also promoted by Barr from the Atlanta court was Earle Wilson, who denied 98.1% of asylum claims from 2013 to 2018, according to Syracuse. That was more than all but five immigration judges in the U.S.

Wilson and Cassidy were also named in two complaints filed by the Southern Poverty Law Center, a civil rights group, in 2017 and 2018 that argued the Atlanta court was treating immigrants unfairly. The complaints said Wilson and Cassidy behaved in an intimidating fashion toward immigrants and their advocates.

It is not clear whether the Justice Department has responded to those complaints. The department said Friday it does not discuss personnel matters.

The other new appellate judges are:

• Keith Hunsucker, who has spent most of his time on the bench at the immigration court at the Port Isabel Detention Center in Texas. While there, he denied 81.6% of asylum cases, consistent with his court’s 81.1% average. Hunsucker is now in Cleveland.

• Deborah Goodwin, appointed from the Miami immigration court. She began hearing cases in 2017, and through last year had a denial rate of 89.4%, above her court’s average of 79.6% in the 2013 to 2018 time frame measured by Syracuse.

• Stephanie Gorman, promoted from the Houston immigration court. She began hearing cases in 2017 and has an 86.9% asylum denial rate, slightly below her court’s 89.3% average.

• Stuart Couch, who was appointed from Charlotte, N.C., denied 92.1% of asylum claims from 2013 to 2018. That was above his court’s average of 88.2%.

Couch also authored a 2017 ruling denying asylum to a Salvadoran woman who was physically and emotionally abused and raped by her ex-husband, a decision that the Board of Immigration Appeals reversed. It was that appellate decision that Sessions overturned to align the law more closely with Couch’s interpretation, saying domestic violence was largely not grounds for asylum. A federal judge has blocked that ruling for now.

Couch’s original decision was one of 10 domestic violence-related cases in 2017 in which the Board of Immigration Appeals found his rulings were “clearly erroneous.” In all 10, Couch rejected the claims of Central American women who had been beaten, raped and otherwise abused by their husbands or partners. The cases were made public as part of a Freedom of Information Act request by immigration attorney Bryan Johnson.

The Justice Department stood behind all the judges.

“DOJ doesn’t track asylum approval and denial rates for individual immigration judges, and (Syracuse) uses its own methodologies in interpreting the data it receives, resulting in conclusions that we cannot verify,” a spokesperson said in a statement. “Collectively these judges combined, have nearly 120 years of immigration law combined, through multiple administrations. Advocates that attack their integrity and professionalism only undermine the entire system.”

Immigration attorneys fear the hires are part of an effort by the Trump administration to skew the courts against immigrants, who face deportation if their claims are denied.

“The board’s primary function is to ensure rule of law and impartiality, yet the department cherry-picked judges from the harshest jurisdictions with the lowest asylum grant rates in the nation,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. “When we’re talking about asylum cases, these decisions are life or death for those seeking protection.”

Lynch’s group, along with the American Bar Association and national union for immigration judges, have called for the immigration courts to be removed from the Justice Department and made independent. Rep. Zoe Lofgren, D-San Jose, has pledged to pursue legislation that would do so through the Judiciary subcommittee on immigration she chairs in the House.

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

How many refugees will die or be subjected to additional torture and persecution because of thoroughly biased judges and a corrupt “judicial” system controlled by political hacks like Barr. Will Congress and the Article IIIs ever step in and restore some semblance of Due Process? Unless and until they do, the “blood of the innocents” will be on their hands.

Meanwhile, the complicit/complacent Article IIIs who have let this situation get out of control can look forward to being flooded with petitions for review, because the New Due Process Army will continue to fight this unconstitutional, fundamentally unfair, and evil perversion of American justice!

The idea that six Judges with asylum denial rates astronomically above the national average of 57.1% were the “best qualified” for these appellate jobs is simply absurd. Indeed, probably all of us in the Roundtable of Former Judges know of much better judicial candidates who were passed over so that Barr could install his “Death Squad.”

As Tal points out, unless piling up bar complaints, being cited by the public for rudeness, being reversed by their BIA, and denying an usually high number of asylum claims are among the “quality ranking factors” for these jobs, it’s hard to see how several of these judges would be considered even minimally qualified for promotion, let alone “best qualified.” It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qualifications of candidates who were passed over.

Human lives are being trivialized by this White Nationalist regime and its enablers.

PWS

08-23-19

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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

Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

Summary

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BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

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That’s where the “5 C’s” come into play: Constantly Confront Complicit Courts 4 Change!

At the same time, make an historical record of those judges who “stood small” in the face of Trump’s vicious and corrupt assault on our Constitution and our democratic institutions, not to mention the lives and well-being of vulnerable migrants!

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Paul Schmidt, who chaired the Board of Immigration of Appeals from 1995 to 2001, says the administration’s goal is to build a “deportation railway” in which cases move through the system as quickly as possible and then get “rubber-stamped by the Board.”

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