"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Michigan Stadium, America’s largest, holds 107,601. Garland has added almost that to his EOIR backlog in the first two months of FY 2022. It would take 15 Michigan Stadiums to hold all the folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts. And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! Michigan Stadium Photo by Andrew Horne, Creative Commons License
Transactional Records Access Clearinghouse
Immigration Courts Now Face Backlog of Over 1.5 Million Cases
According to data updated today by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the number of pending cases in Immigration Court has now reached 1,559,855 as of the end of November 2021. The high number of pending cases puts additional pressure on Immigration Judges who are tasked with deciding these cases.
The Transactional Research Access Clearinghouse (TRAC) a research organization at Syracuse University created ‘Quick Facts‘ tools to provide a user-friendly way to see the most updated data available on the Immigration Courts. The tools include easy-to-understand data in context and provide quotable descriptions. Many of TRAC’s Immigration Court data tools have also been updated and can be viewed by clicking here.
Additional key takeaways from today’s data release include the following:
Immigration Courts recorded receiving 143,803 new cases so far in FY 2022 as of November 2021. This compares with 43,156 cases that the court completed during this two-month period.
According to court records, only 0.51% of FY 2022 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.
At the end of November 2021, 1,559,855 active cases were pending before the Immigration Court.
Harris County, TX, has the most residents with pending Immigration Court deportation cases (as of the end of November 2021).
So far this fiscal year (through November 2021), immigration judges have issued removal and voluntary departure orders in 24.0% of completed cases, totaling 10,357 deportation orders.
So far in FY 2022 (through November 2021), immigrants from Guatemala top list of nationalities with largest number ordered deported.
Only 20.7% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.
Immigration judges have held 4,193 bond hearings so far in FY 2022 (through November 2021). Of these 1,613 were granted bond.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
601 E. Genesee Street
Syracuse, NY 13202-3117
315-443-3563
trac@syr.edu
https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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Wow! Garland “jacked up” the backlog by over 100,000 cases in the first two months of of FY 2022! Most impressive! That’s on a torrid pace to exceed 600,000 additional “warehoused” cases annually! At that rate, the Immigration Courts will hit the 2 million mark by the end of August 2022!
That puts the previous “Backlog Kings” Gonzo Apocalypto Sessions and Billy the Bigot Barr to shame!
And, it’s being achieved with more than twice the number of Immigration Judges on board than at the end of the Obama Administration in 2017! After the indolent judicial recruitment and hiring of the Obama era (an incredible average of more than two years to fill a judicial vacancy), the Trump AGs were able to “pack” the Immigration Courts with many judges whose primary qualification appeared to be willingness to grind out removal orders without regard to much besides the DOJ’s virulent anti-immigrant policies, the need to cut corners, and the consistent elevation of expediency over due process and judicial excellence.
One logically might have expected Garland to focus on “unpacking” this mess with an aggressive outreach outreach and new merit-based hiring and recruitment program that sought and valued experience representing individuals in Immigration Court at least as much as government prosecutorial backgrounds. But, not so much.
In particular, the BIA remains “well-packed” with Trump-era appointees, a number of whose appellate judicial credentials were questioned and criticized by immigration and human rights experts! No matter to Garland!
Even “gimmicks” like “dedicated dockets,” phantom, defective “Notices to Appear” (Master @ 9 AM Christmas AM, anyone?)designed to frustrate lawyers and produce in absentia removals, and ramming 80% of unaccompanied minors and others receiving removal orders through the system without lawyers haven’t stemmed the tides of systemic failure!
Truth is, only a distinct minority of recently completed cases resulted in removal or voluntary departure orders (24%). That, combined with the minuscule number of “new filings” that appear to meet the Administration’s highest priorities, criminal activity (0.51%) strongly suggests that the vast majority of pending cases, perhaps as many as 1 million, could be administratively closed, referred to USCIS, “fast-tracked” for relief, or otherwise taken off the docket without adverse effects to either party.
But, despite such pontification, the fact is that the Dems and Garland have completely failed to reform and improve the quality of the one major court system they entirely “own” — the U.S. Immigration Courts. That makes speculation and debate about what could be done to reform and save the credibility of the Article III Courts nothing but feckless idle chatter!
While the DOJ has often pushed the “myth” that backlogs “benefit” immigrants, the truth is quite different. Insurmountable backlogs in Immigration Court, intertwined with Aimless Docket Reshuffling, deny due process to individuals, demoralize and penalize lawyers representing migrants (often serving pro bono or low bono), and cripple our overall justice system.
That’s a national tragedy of epic proportions, unfolding and worsening under Garland and the Dems, the reverberations of which will shake the very foundations of American democracy!
The Trumpsters successfully weaponized the Immigration Courts, without regard to law, institutional integrity, or outside protests and criticism! The Dems appear too timid, disinterested, discombobulated, and lacking in imagination and initiative to fix them while they have a chance! That’s not a good sign for American democracy!
Will Garland ever be held accountable for threatening the lives of migrants and undermining our entire justice system by running the most dysfunctional “court system” in America on his watch? PHOTO: Wikipedia Commons
Dan Kowalski reports @ LexisNexis Immigration Community:
“Despite its obligation under Saidane, the DHS made no effort—good faith or otherwise—to procure for Alcaraz’s cross-examination the witnesses whose testimony was embodied in the probation report and upon whose testimony the BIA ultimately relied in denying his appeal. See id. This failure impugned the probation report’s reliability and rendered the BIA’s procedure fundamentally unfair. … Based on the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom, we grant in part Alcaraz’s petition and remand for a hearing that comports with the requirements of § 1229a(b)(4)(B). … On remand, cross-examination of the author of the probation report (or the declarant) could affect both the IJ’s credibility determination as to Alcaraz and the BIA’s decision to credit the probation report’s version of events over Alcaraz’s.”
Rodriguez controls the outcome of this case. Here, as in Rodriguez, “[t]he initial NTA” sent to Lemus-Ayala “did not contain the time and date of [his] hearing.” Id. And just as in Rodriguez, see id., the BIA’s holding in this case that Lemus-Ayala was not entitled to recission of the in absentia removal order rested on the Board’s legal conclusion that an NTA “that does not specify the time and place of an individual’s removal hearing . . . meets the requirements of … §1229(a), so long as a hearing notice specifying this information is later sent to the individual.” The BIA’s conclusion to that effect was an abuse of discretion, as it was based on an erroneous interpretation of a statute. See Barrios-Cantarero, 772 F.3d at 1021.
An in absentia removal “order may be rescinded . . . upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with . . . section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C). Lemus-Ayala was not notified “in accordance with . . . section 1229(a),” and so, as in Rodriguez, the proper disposition is to vacate the BIA’s decision to deny Lemus-Ayala’s motion to reopen and rescind the in absentia removal order, and to remand the case for further proceedings. See 15 F.4th at 356.1
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
“Carlos Escobar Gomez seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his application for asylum. The BIA determined that Escobar Gomez was ineligible for asylum because he failed to establish membership in a particular social group defined with sufficient particularity. Because this ruling is not supported by a reasoned explanation, we grant the petition for review and remand to the BIA for further proceedings.” [Note the long and detailed concurrence by Judge Wynn.]
Even 4th Cir. “Ultra-conservative” Judge J. Harvie Wilkinson III has finally had enough, joining his panel colleagues in remanding after the BIA ignored both their own precedent and Circuit precedent on administrative closing in their “rush to no” to please their “partners” @ DHS Enforcement:
Finally, Merida-Saenz asserts that the Board erred by failing to remand to the IJ for the administrative closure of his case pursuant to our decision in Romero v. Barr, 937 F.3d 282, 297 (4th Cir. 2019) (holding that IJs and the Board possess “the general authority to administratively close cases”). While the Board acknowledged that Merida-Saenz had argued for administrative closure on appeal, it neither explicitly resolved that argument nor applied any of the relevant administrative closure factors thereto. See In re Avetisyan, 25 I. & N. Dec. 688, 696 (B.I.A. 2012) (specifying administrative closure factors). Moreover, the Board’s resolution of Merida-Saenz’s continuance request did not resolve his administrative closure argument. Although a continuance and an administrative closure are similar forms of relief, they are distinct in purpose and in result. See Romero, 937 F.3d at 289, 294 n.12 (contrasting circumstances in which continuance is appropriate with circumstances in which administrative closure is appropriate); Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 892 (9th Cir. 2018) (explaining that administrative closure is “like” a continuance but not identical thereto). Because the Board’s decision does not demonstrate that it has actually considered Merida-Saenz’s administrative closure argument, we grant the petition for review as to this argument and remand to the Board for further proceedings. See Gonzalez, 2021 WL 4888394, at *10 (remanding for Board to address administrative closure argument in first instance); Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir. 2008) (explaining that we cannot review the Board’s decision when the Board has given us “nothing to review”).
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Obviously, the Article IIIs have their own due process problems with burying significant rulings, particularly in immigration, in highly inappropriate, approaching unethical, “unpublished” decisions. These aren’t “routine” cases except that material errors at Garland’s BIA are so frequent that Circuit Courts have wrongly come to view them as “routine” and thereby to “normalize” substandard judging.
That’s basically sweeping the festering and ever-growing problem of a dysfunctional and unjust EOIR “under the carpet” — something that both Garland and EOIR apparently have come to rely upon. The unpublished cases highlighted above each have important messages and analytical points for practitioners as well as the EOIR judges who screwed them up! Even Garland could learn by paying attention to the poor quality work being churned out by EOIR in his name!
You know you’ve hit rock bottom as an immigration jurist when even Judge Wilkinson can’t think of a way to paper over your errors and explain away your abuse of immigrants! The same might be said when you start getting reversed on a regular basis by the 5th Circuit — a court that almost never saw a migrant they didn’t want to dehumanize and deport!
In a real court system with real judges, DHS would be treated as a “party” not a “partner.” But, not in Garland’s courts, where judicial quality and fundamental fairness have gone to die and be buried. ⚰️🪦
Wonder why Dems struggle to govern? Look no further than the astounding lost opportunity for transforming EOIR into a real court system where great judges could be modeling due process, fundamental fairness, backlog-reducing better precedents, and best practices.
One of the best ‘fixes” for any broken system is appointing talented experts who will get the decisions right in the first place and promote excellence and efficiency by establishing, promoting, and, most of all enforcing, “best practices” systemwide, with particular emphasis on getting it right at the initial level, be that Immigration Court or the USCIS Asylum Office.
Of course, at EOIR that would mean appointing a BIA with judges who have the backgrounds and expertise to actually recognize what best interpretations and best practices are in the first place! Hint: It’s got nothing to do with bending over backwards to help “partners” at DHS enforcement, maximizing removal orders, positioning OIL to argue Chevron or Brand X, or thinking of new and creative ways that the system can be mis-used as a “deterrent” to individuals making claims for legal relief. Those were Sessions’s and Barr’s “priorities,” and Garland has done little to change the rancid culture in his Immgration Courts. See, e.g., https://immigrationcourtside.com/2021/12/15/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bd%f0%9f%a4%ae-aimless-docket-reshuffling-adr-on-steroids-eoir-dysfunction-shows-what-happens-when/
Instead, Garland has given us a potentially fatal dose of “good enough for Government work” — on steroids, with lives and the foundations of our democracy hanging in the balance every day!🤮👎🏽👎🏽👎🏽👎🏽👎🏽🤡
It’s an entirely unnecessary, ongoing national disgrace!🤮
🎅🏻🎁🧸🎄😇“Happy Holidays from the U.S. Government! Don’t these folks know they could avoid this fate if they only would take our advice and ‘due in place’ — out of sight, out of mind.” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Arelis R. Hernandez Southern Border Reporter Washington Post
EL PASO — Chaos, confusion and disillusionment marked the experience of many of the first asylum seekers to be enrolled in the Biden administration’s revised “Remain in Mexico” program, saying they understood little about what was happening or why they were selected.
The Trump-era program — formally known as Migrant Protection Protocols (MPP) — returns border-crossers to Mexico to await the outcomes of their asylum claims and resumed earlier this month under court order. Although the Biden administration said it has made changes to the program that make it more humane, several of the first enrollees interviewed by The Washington Post said they did not understand documents they were asked to sign, did not have access to lawyers and were puzzled about why they were not released along with some of their compatriots.
Three men — two from Nicaragua and one from Venezuela — who were among the more than 160 migrants enrolled so far, said they had been robbed or extorted before crossing the U.S.-Mexico border. The men, who were fleeing political persecution, said they hoped for relief in the United States, but instead felt as if they had won a raffle they never entered.
“I told the asylum officer I’d rather be in a U.S. detention center than be sent back to Mexico,” said Pedro, a 27-year-old asylum seeker from Nicaragua. “It’s dangerous for us.”
(The Washington Post is identifying the men only by their first names because they fear they might jeopardize their cases by speaking publicly.)
Biden’s Department of Homeland Security is still trying to terminate MPP, even though it was ordered to reimplement it by a federal judge. The administration lost an appeal of the ruling this week after the U.S. Court of Appeals for the 5th Circuit in Louisiana upheld the lower court decision. The circuit court order said the Biden administration erred when it issued a memo earlier this year terminating the program, “affecting billions of dollars and countless people.” The program, which is in effect in one border community and accepting only men, will soon expand to six more communities and could soon include families.
[‘Remain in Mexico’ program begins in El Paso amid skepticism from advocates]
Advocates say that MPP subjects migrants to a policy as hazardous to their lives as the reasons that prompted them to flee to the United States for protection. They say the revised version of the program is as flawed as it was under the Trump administration, when the New York-based nonprofit Human Rights First tracked more than 1,500 “violent attacks” against migrants.
“The Biden administration’s revamped ‘Remain in Mexico’ is already presenting security and due process concerns we saw under the Trump administration,” said Julia Neusner, who interviewed 16 MPP enrollees for Human Rights First. “I anticipate this process will deny people their due process rights and accessing counsel. This policy is inherently dangerous and I expect it to cause tremendous suffering as the rollout expands.”
. . . .
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Read the full article at the link.
”Let ‘Em Die In Mexico!” What a thoughtful way for the world’s richest and most powerful nation to recognize and honor the birth of Christ. Doubt that Jesus would approve, though! He’d more likely be found among the “floaters” than with the arrogant, privileged, inhumane politicos and judges who came up with this idea and then enabled it!
Completely unnecessary! The incoming Biden Administration had the blueprints to reestablish due process and the rule of law at the border and to start robust, realistic, expanded refugee programs in potential sending countries. The practical human rights/immigration experts who could have pulled it off were out there.
The Administration could have “hit the ground running” with bold innovative actions, practical expert leadership, and a show of competence and humanity. But, they didn’t!
Instead, Biden, Harris, Mayorkas, and Garland dissed the progressive experts, ignored their recommendations, and froze them out of key judicial and leadership positions, preferring instead to use modified versions of “proven to fail deterrence-only programs” administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers. (There is an important legal doctrine of “mixed motive” that politicos, bureaucrats, and bad judges often choose to ignore when it suits them.)
Not surprisingly, this ridiculous, muddled “Miller Lite” approach has been spectacularly unsuccessful! Predictably, flows of desperate refugees, generated largely by circumstances outside our immediate control (contrary to restrictionist myths reinforced by some enforcement aficionados and mindlessly repeated by some mainstream media) have continued. Humans have continued to needlessly suffer and die. Backlogs have grown without credible plans to address them. The rule of law and the U.S. justice system (led by failed Immigration Courts, but also including poorly functioning and too often “brain dead” jurists at all levels of the Federal Judiciary) has continued to flounder and lose credibly. The “die in place and never darken our doors” message delivered by Gauleiter Miller and his acolytes, cluelessly repeated by VP Harris, hasn’t convinced anyone. Would YOU basically accept an invitation to “commit slow suicide by persecution rather than taking a chance on survival.”
And, also predictably, nobody is pleased or supportive of the Biden Administration’s inept and disingenuous approach. From hard core racist nativists to liberal asylum advocates, nobody, but nobody, outside the Administration’s party line flackies, supports this approach! Indeed, nobody in the Administration can even explain what they are doing on any particular day in a coherent manner.
Humanity, moral courage, common sense, and the rule of law might be taking a holiday. But death and despair don’t.
Appoint these inspirational, dynamic, proven “scholar leaders” as Co-Chairs:
Dean Kevin Johnson, UC Davis Law & “most cited” immigration scholar;
Marielena Hincapie, National Immigration Law Center.
Add in three experienced Vice Chairs who really “know the business” (including where all the bodies are buried @ EOIR and how to make bureaucracy respond):
Judge Noel Brennan, NY Immigration Court, former BIA Appellate Judge;
Judge Dana Leigh Marks, San Francisco Immigration Court, former NAIJ President, “winning” attorney before the Supremes in the landmark asylum case INS v. Cardoza-Fonseca;
Jason Dzubow, Esquire, “everyone’s favorite Asylumist;”
Lauren Wyatt, CLINIC, NYC, inspirational scholar-role model working “in the trenches;”
Ayodele Gansallo, HIAS Pennsylvania, Penn Law, co-author of Understanding Immigration Law and Practice, the “Bible of aspiring practical scholar-practitioners;”
Jaya Ramji-Nogales, Associate Dean, Temple Law, co-author of Refugee Roulette and The End of Asylum.
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Now, THAT’S an amazing, inspiring, dynamic “all-star judicial lineup” that could actually achieve the former “EOIR Vision” of: “Through teamwork and innovation, become the world’s best administrative tribunal, guaranteeing fairness and due process for all!”
What does this diverse group have in common?
Demonstrated, unswerving, overriding commitment to due process and fundamental fairness for migrants and all persons in America;
Impeccable, accessible scholarship in human rights, migrants’ rights, and constitutional interpretation;
Courage to speak truth to power;
Expertise in and concern for ethical issues;
Ability to engage in robust dialogue without sacrificing fundamental principles;
Ability to lead by example and inspire others;
Practicality;
Creativity;
Humanity;
Independence;
Widespread recognition, respect, and admiration among peers.
This court also would have the potential to deliver a long-overdue “wake up call” to the now-floundering Article III Judiciary.
Why would members of this high-powered group of intellectual giants be willing to leave comfortable current positions to accept the challenge of leading and reforming what currently is “America’s Worst Court System?”
A chance to be on a team of some of the most powerful “practical legal intellects” in America;
A chance to show how a diverse court of exceptionally-well-qualified judges can solve problems, implement best practices, and achieve timeliness and efficiency while enhancing due process;
The chance to save lives and improve futures — to make a positive difference in the world that will inspire future generations;
The chance to redefine “justice in America” in a positive way.
The BIA also has a large, talented staff of lawyers (I was one myself, back in the day) who would thrive and prosper under the intellectual leadership of these “practical scholars” and proven teachers! The BIA is potentially the “premier legal university/think tank” in America. But, unlike most think tanks, one with a mission, the ability to render best interpretations, implement best practices, and to issue hundreds of life-defining decisions every day! What other court in America could say the same? Why is this amazing untapped potential basically going to waste?
A pipe dream? Probably. But it shouldn’t be!
The BIA is “Not Quite Ready For Prime Time” (“NQRFPT”). But, “Neon Deion” Sanders IS “Prime Time.” Judge G. should take note! Deion Sanders Photo by Michael J. Cargill Creative Commons License
Just look how in a relatively short time as a head coach at a “non-power-conference” HBCU, Jackson State, dynamic former NFL star and “larger than life” personality “Neon Deion” Sanders has shaken up the system and changed the “playing field” in the insular world of “big time college football.”This week, the “projected top recruit” in America chose Sanders & J-State over the “powers that be.” Presence, leadership, boldness, talent, and results (Jackson State was 11-1 this year) can force change for the better in even the most inbred and change-resistant systems (like EOIR, and to a large extent, the entire Federal Judiciary)!
It’s totally within Judge Garland’s power, if he would only wake up and make the bold, yet totally logical, justified, and long overdue moves necessary. He’s already sinking deep into the morass of responsibility for probably the most dysfunctional, yet consequential, failed “court” system in American legal history. What’s he got to lose by taking the steps necessary to dramatically turn things around?
As I recently wrote about EOIR:
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
Recent GOP Administrations have been perfectly willing to unethically “weaponize” EOIR to carry out their far-right, nativist political agenda. They have “shrugged off” near-universal criticism of their most outrageous moves, including key quasi-judicial selections, and, inexcusably, “dumbed down” EOIR.
Democrats, by contrast, have been timid, indolent, and feckless, failing to undo the damage and make due process, fundamental fairness, and equal justice for all persons a reality rather than a cruel false promise. Garland appears bullheadedly determined to move in the same wrong direction.
And, “time’s a wasting!” We’re nearly a year into an Administration that promised real improvements but has basically carried out a disgraceful “Miller Lite,” anti-humanitarian, anti-constitutional agenda of abusing, mistreating, and dehumanizing legal asylum seekers and other migrants. As pointed out recently by a number of us, this also extends to the dedicated attorneys and representatives trying to preserve at least some semblance of justice in our stunningly dysfunctional Immigration Courts.
As if to prove his tone-deafness, imperviousness to meaningful change at EOIR, and utter disdain for those advocates and “practical scholars” who helped him get his job, after one “better-balanced selection list,” Garland’s latest 22 Immigration Judge appointments reverted to the usual array of government and prosecutorial background appointments to the near-total exclusion of private/NGO/academic sector superstars who have the potential to materially change the trajectory of today’s dysfunctional Immigration Courts. Check this out! How many names do YOU recognize as among the “leading lights” of human rights and immigration scholarship and advocacy? How is this going to help advance due process, promote fundamental fairness, reduce the backlog, develop best practices, and reverse the endemic dysfunction at EOIR?
Compare and contrast this list with the ”Dream BIA” described above. The private sector talent pool to improve judging and justice at EOIR is really deep. But, Garland stubbornly refuses to “take the plunge” even as what’s left of our immigrant justice system disintegrates around him!
As Neon Deion could tell Judge G., “getting the best when you’re not yet the best” often involves working extra hard hard to actively change perceptions and aggressively recruit the “star talent.” Just sitting back to see who might apply or sign up doesn’t work any better at EOIR than it does in “non-power-five” college football.
This should be a perhaps never to be repeated chance to “model” a better Federal Judiciary. Almost overnight, Immigration Courts could go from being a “sad but true YouTube comedy routine” to an inspiring model for a better-functioning and more just Federal Judiciary.
But, not with the current personnel in place! Not with the opaque inbred selection process Garland currently uses (getting some outside Government expert input into judicial selections would be a “no-brainer” starting place). Garland is letting it slip through his fingers, but migrants and the rest of us are going to pay the price!
The “new generation” of our legal profession should be both outraged and existentially motivated to stand up to Garland’s intransigence!It’s not just migrants’ lives that are at stake here (as if that weren’t enough, in and of itself)! It’s the future of the U.S. Justice system, our legal profession, and liberal democracy that are swirling down the drain as Garland watches from his ivory tower refuge!
My time on the stage is winding down. But, for a new generation of legal professionals, it’s just starting. YOU and yours are going to have to live with the broken justice system and inferior judging that Garland is countenancing. Demand better, or prepare to live with the ugly consequences of a failed judiciary!
As my friend and Round Table colleague “Sir Jeffrey” Chase quipped: “Sadly, funny because it’s so true!”
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Compare and contrast what happens to a respondent who fails to appear for a hearing after receiving defective “notice” with what happens when EOIR and DHS “FTA” for a properly scheduled hearing, often with NO (or only brief) notice.
Ivory Towerists like Garland and his crew wouldn’t last 60 days “in the trenches” of our disgraceful Immigration (Non) “Courts!” How many times do you think the “Garlands of the world” would put up with being yelled at and demeaned by bad judges and burned out clerks? Having their cases that they have meticulously prepared and sweated over rescheduled without notice for no good reason! Dealing with traumatized clients and scared witnesses for whom a day off for court isn’t covered by “personal leave” but could actually cost them their job?
Allowing “elite ivory towerists,” who have never been subjected to Immigration Court, and who know and care little or nothing about what happens there and how it affects humanity, to run it is killing our justice system! ☠️💀⚰️ Literally!
“Sorry, Liz, all of your cases have been reshuffled to October Term 2025. Notice, what notice?”PHOTO: Twitter
What if the Solicitor General, Elizabeth Prelogar arrived at the Supremes, family, spear carriers, fan club, and press flackies in tow, only to find out that her “high profile” case had been “reset” to October Term 2025 without notice because the Chief Clerk (NOT the Chief Justice) had “re-prioritized” the docket?
Folks, I’m retired. I have no intention of ever appearing in Immigration Court again. I don’t have to rely on practicing law any more to feed my family and pay my bills.
But, whether you practice immigration law or not, the younger generation of our legal profession has a vested interest in stopping the ludicrous public degrading of justice in our totally dysfunctional and fundamentally unfair Immigration “Courts.” Injustice to one affects justice for all, to quote or paraphrase MLK, Jr.
YOU, the lawyers of the future, must demand and pressure Garland until he stops treating the most important “retail level” of our justice system — one he completely controls and where lives are on the line every hour of every working day — as a “comedy routine” rather than a serious court of law!
Otherwise, by the time you are my age, there will be no legal system left in America and quite possibly no democracy either!
Yes, folks, it can happen here! Each of YOU could be treated as a “non-person” without humanity or enforceable rights, just like migrants and minorities are being treated today by the arrogant elitists who have been allowed to control our legal system.
Garland might think it’s smart, or even funny, to run the Immigration Courts like a joke. But, those tens of thousands, perhaps millions, whose lives are destroyed by his incompetent leadership and tolerance for the intolerable are not laughing! Nor are the lawyers who are fighting in the trenches to save lives and or preserve our democracy!
For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.
So what happens when the Individual Hearing is canceled?
“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”
The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.
Why does this happen?
There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.
And then we check the online system and find that the case is off the docket.
What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.
“I’m double booked today, so let’s put off your heart surgery until 2023.”
Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.
Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.
“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”
If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.
It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.
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Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.
The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.
At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction, mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”
In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be!
In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?
Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs.
Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.
But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.
It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing” has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?
These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.
We deserve better from our legal system!
Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎
Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling.☠️
Attorney General Merrick Garland’s “limited vision” for EOIR is a continuing nightmare for those sentenced to appear and practice before his stunningly dysfunctional and “highly user unfriendly” Immigration “Courts.” Isn’t it high time to insist that those given responsibility for stewardship over America’s largest — and probably most consequential — Federal “Court” system actually have represented humans before those “courts?” PHOTO: Thomas Hawk Creative Commons Amateur Night
Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”
Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town
Free NYSBA asylum training CLE webinar Dec. 13 1-2 pm ET
Are you considering handling your first pro bono asylum case, but unsure of how to proceed? This free one-hour CLE training sponsored by the New York State Bar Association will orient you to the fundamentals of asylum eligibility and procedure, common issues to consider, and mentorship possibilities. Handouts will be provided.
When: Monday December 13, 2021, 1-2 pm ET
Where: online
Speakers: Victoria Neilson (Managing Attorney, Catholic Legal Immigration Network), Rebecca Press (Legal Director, UnLocal, Inc.), and Steve Yale-Loehr (Cornell Law School)
Thanks, Steve, my friend, for passing this on! I’m grateful for all you do to educate, guide, support, and most of all inspire the NDPA in the never-ending fight to force our Government to make due process and fundamental fairness for all persons in America, regardless of race, creed, or status, a reality rather than the cruel farce it is today!
Never has the need for talented pro bono representation in Immigration Court been greater.
And, the Garland DOJ’s indifference to long overdue due process, quality control, personnel, and best practices reforms in the broken and backlogged EOIR system means that the battle to save lives and force change through aggressive litigation is just beginning and ultimately will succeed!
The good news: Given the endemic lack of expertise, discombobulated administration, and disregard for quality at EOIR, the “talent balance” favors the NDPA! Many deserving lives can be saved and at least some degree of accountability forced on Garland’s dysfunctional EOIR through aggressive, well prepared litigation that makes compelling records, advances correct interpretations and applications of the law, and resists and triumphs over the “race to the bottom” that has destroyed and perverted justice in our Immigration Courts.
Sign up today! It will be the “best hour” you spend next week!
Garland doesn’t worry about the mess at his EOIR. He leaves the worrying to EOIR’s long-suffering, frustrated, and angry “customers!” PHOTO: Wikipedia Commons
Transactional Records Access Clearinghouse
Immigration Court’s Data on Minors Facing Deportation is Too Faulty to Be Trusted
After careful analysis and consideration, TRAC is forced to suspend its publication of data on juveniles facing deportation in Immigration Court due to serious, unresolved deficiencies in the EOIR’s data. TRAC’s analyses indicate that the data used by the Immigration Court for tracking and reporting on juveniles who are facing deportation appear to be seriously flawed to the point that we question whether the agency has the ability to meaningfully and reliably report on juveniles in its caseload.
We wrote to EOIR’s Acting Director Jean King on September 22, 2021 to share TRAC’s findings, request feedback from the agency, and offer to share additional details to support the agency’s efforts to identify and resolve the issues. TRAC did not receive any response to that letter. We wrote to the EOIR again on October 15, 2021, this time to Director David Neal who had subsequently been appointed as EOIR’s permanent director by Attorney General Merrick Garland. We reiterated our initial concerns, but TRAC did not receive a response to that letter either.
TRAC is now regretfully withdrawing its own Juvenile App since EOIR’s data are too flawed to be used. Because these significant data problems arose only at the time EOIR implemented a series of changes in the latter part of 2017 impacting how unaccompanied juveniles were tracked, the results compiled before these changes occurred will be retained online for use in historical research.
The Immigration Court’s failure to respond to or address TRAC’s findings of significant data quality issues regarding minors is particularly concerning given the highly sensitive nature of children facing deportation. This data quality problem on tracking juvenile cases adds to EOIR’s earlier refusal to address data quality issues regarding asylum cases that continue to disappear from the agency’s master database which it relies on to manage its workload. Furthermore, TRAC recently uncovered additional data problems leading EOIR to falsely report its asylum backlog had allegedly declined this past year when in fact the backlog had markedly grown.
Taken individually, each specific issue is significant and noteworthy in its own right. But taken together, these now multiple unresolved data quality issues are compounding upon each other. TRAC has repeatedly offered to work with the EOIR to aid the agency as it seeks an understanding of the problem and a meaningful solution—yet thus far EOIR has continued to ignore its growing data management problems.
The public should be increasingly troubled by the indifference that the Immigration Courts have shown to these issues and should push for improved transparency and accountability.
For further information about the problems in the Court’s juvenile data go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
601 E. Genesee Street
Syracuse, NY 13202-3117
315-443-3563
trac@syr.edu
https://trac.syr.edu
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Bogus data “supporting” false claims! Institutionalized sloppiness! Serious legal mistakes! Wildly inconsistent application of basic legal principles and standards! Chronic mismanagement! Backlogs on steroids! Lack of public responsiveness! Wrong personnel in the wrong jobs!
That’s “Garland’s EOIR!” To put it charitably, it’s a godawful mess and a festering cancer on our entire legal system!
Charles Dickens would have loved writing about EOIR — the modern day reincarnation of the Court of Chancery from Jarndyce v. Jarndyce! Public Realm
EOIR is like something out of a Charles Dickens novel! But, it’s a harsh reality for the immigrants, families, and advocates subjected to this publicly financed hotbed of incompetence, indifference, and ineptness!
Obviously, running EOIR in even a minimally competent level is beyond Garland’s skill set and below his interest level! Stunningly, our Attorney General is unbothered by having legal “work product” that would embarrass any self-respecting L-1 churned out in his name by his “delegees.” Feeding false and misleading information to the public? Just “another day at the office” @ Garland’s EOIR!
Where’s the Congressional oversight? Where’s Article I?
Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)
David L. Neal, Director 8 C.F.R. § 1003.0(b)
On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.
II. Administrative Closure to Date
Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.
In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that
OWNER:
AUTHORITY: CANCELLATION: None
I. Introduction
1
adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).
In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.
III. Administrative Closure after Matter of Cruz-Valdez
With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.
The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent
1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).
2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).
3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,
2
desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.
Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).
Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).
Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).
Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where
Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.
3
such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.
IV. Conclusion
Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.
4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.
5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).
4
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WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).
In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps. Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.
WHAT ACTUALLY HAPPENED: Typical Dem timid approach.
Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog.
Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs).
One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data.
Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!
Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.”
EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”
Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.
Please thank them all on my behalf. I’m extremely grateful for what each of them did on my case.” This is what our client, E-K- said upon receiving well wishes from several of his former student-attorneys after he was sworn in as a U.S. citizen yesterday. Please see the attached photo of E-K- with Prof. Vera after his oath ceremony. E-K- authorized our use of his picture.
E-K- became a Clinic client in 2009 after an unsuccessful interview at the Arlington Asylum Office. In February 2010, E-K-, a native of Cameroon, had his first Individual Calendar Hearing based on his political opinion and imputed political opinion following his involvement in a sit-in and his presence during a protest. DHS appealed the initial grant of asylum and on remand the Board of Immigration Appeals instructed the Immigration Judge to pay attention to credibility. However, the Immigration Clinic and E-K- prevailed again in 2013 and the asylum grant was finalized! The Clinic then assisted E-K- with his green card application, naturalization application, and naturalization interview. Next up: his wife’s green card application!
Please join me in congratulating Alexa Glock, Anca Grigore, Rebekah Niblock, Victoria Braga, Alex North, Jonathan Bialosky, and Paulina Vera, who all worked on the case.
Real life success stories from real life humans represented by well-trained law students in a “Surreal Immigration Court System!”
Brings to mind the disgraceful incident when former Trump-Era EOIR Director James McHenry created a bogus “Fact Sheet” with a ludicrous narrative in a dishonest attempt to show that lawyers and knowing individual rights in Immigration Court were irrelevant to success.
McHenry’s lies, myths, and intentional distortions were universally panned by immigration experts as reported by Courtside at the time.
Under Judge Garland, the DOJ claims to recognize and promote representation in Immigration Court. But, leaving aside the mushy rhetoric, their actions say otherwise:
“Dedicated Dockets” and sloppy mail-out notices established without consultation with the private bar;
Proposed asylum regulations almost universally opposed by the private bar;
Failure to slash the overwhelming, due process inhibiting, 1.5 million case backlog;
Continued “Aimless Docket Reshuffling” fueled by changing and misplaced administrative “priorities”that totally ignore the needs of the pro bono bar;
Continuing support for “imbedded Immigration Courts and TV Courts” established in or near DHS Detention Centers located in obscure places where attorneys are not easily obtainable;
Overly restrictive and widely inconsistent bond determinations in Immigration Court that inhibit effective representation;
Ridiculous backlog of Recognition and Accreditation applications that impedes new opportunities for well-qualified pro bono representatives in Immigration Court (See, e.g., VIISTA Program, Villanova Law);
Failure to “swap out” a legally substandardly performing BIA and some Immigration Judges for “real, well-qualified Judges with immigration and due process expertise;”
Long-delayed e-filing, making pro bono representation more difficultand less efficient;
Overall lack of dynamic court management and appropriate professional dialogue with the private bar;
Substandard EOIR “judicial training” that puts undue burden on private attorneys, particularly those operatingpro bono;
Lack of positive precedents, particularly on asylum, that would help parties and judges move many “grantable” asylum cases through Immigration Courts fairly, efficiently, and consistently with due process and “best practices;”
Continuing lawless use of Title 42 @ Southern Border causing diversion of legal resources that could otherwise be channeled into representation!
In other words, the DOJ under Garland has failed to deliver on the promise of restoring the rule of law and promoting representation in Immigration Court. Seems like nothing short of Article I will “get the job done!”
It’s painfully obvious that the politicos running the dysfunctional Immigration Courts @ DOJ have never actually had to practice before them, particularly pro bono! So, they just go on repeating many of the uninformed mistakes of their predecessors!
Under the new Biden administration, asylum seekers are seeing greater success rates in securing asylum. While relief grant rates had fallen ever lower during the Trump years to just 29 percent in FY 2020, they rose to 37 percent in FY 2021 under President Biden.
However, with the ongoing partial Court shutdown during the COVID-19 pandemic, there has been a sustained drop in the number of asylum decisions. Even with the greater odds of success, the number of asylum seekers who were granted asylum during FY 2021 was only 8,349 with an additional 402 granted another type of relief in place of asylum. In sheer numbers, this was only about half the number of asylum seekers who had been granted relief during FY 2020, the final year of the Trump administration.
The improved asylum grant rates during FY 2021 began only after the new Biden administration took office at the end of January 2021. Tracking asylum grant rates month-by-month rather than year-by-year, the increase in asylum grant rates under President Biden for the last quarter of FY 2021 (July-September 2021) was even larger: asylum seekers’ success rates climbed to 49 percent. Not only was this much higher than at any period during the Trump years, the asylum success rate was up five percentage points from 44 percent during the last quarter of the Obama administration.
Historically, asylum seekers have had greater success in the Immigration Court for affirmative as compared with defensive asylum cases. At one time, the majority of asylum applications decided by Immigration Judges were affirmative cases referred by U.S. Citizenship and Immigration Services (USCIS). However, most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security initiating removal proceedings in Immigration Court.
Asylum seekers who are represented by an attorney – as most are in affirmative asylum cases – have greatly increased odds of winning asylum or other forms of relief from deportation. For all Court decisions in FY 2021, nearly nine out of ten (89%) asylum seekers in affirmative and defensive cases were represented. This was clearly a vital factor in improving overall asylum success rates since in the prior year, FY 2020, representation rates were 80 percent or nine (9) percentage points lower.
Read the full report – the first in a two-part series – to obtain many more details about trends in Immigration Court asylum decisions over the past two decades at:
The impact of gender, age, language, and nationality will be covered in the second report in this two-part series. Readers need not wait to probe these and many more details on asylum decisions using TRAC’s free web query tool — now updated through September 2021 and expanded to cover gender, age, and language details. As before users can also drill in to see how decisions vary geographically, by state, Immigration Court, and hearing location. Go to:
To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through September 2021, use TRAC’s Immigration Court tools here:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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Here’s some historical perspective. When the Refugee Act of 1980 was enacted, the INS took the position that the standard of proof for asylum was the same as the “traditional” standard for the pre-existing relief of withholding of deportation. That was a “clear probability,” of persecution, which means “more likely than not.”
Because this was a high standard that had been “over-rigorously applied” to deny almost all withholding cases (refugees from communism — Other Than Chinese — were about the only folks who had any chance of being granted withholding, and that was rare) the asylum grant rate remained very low for the first six years following enactment of the Refugee Act. In 1987, that grant rate was only approximately 11%.
In 1987, the Supreme Court decided INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). (As the Acting General Counsel/Deputy General Counsel of INS, I had helped the Solicitor General prepare and articulate the Government’s position. My future Immigration Court friend and colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, argued for Ms. Cardoza-Fonseca. I sat at counsel’s table with the “SG’s Team” during the oral argument before the Court. Shortly thereafter, I left INS to go into private practice at Jones Day.)
To the surprise of many of us, the Supremes soundly rejected the INS position and ruled in favor of Ms. Cardoza-Fonseca. The Court said that a “well-founded fear” of persecution was intended to be a much more generous standard, significantly less than a probability and including a “10% chance” of persecution.
Thereafter, the BIA issued a precedent implementing the “well founded fear” standard as “significantly less than a probability” — an “objectively reasonable” fear of persecution — in Matter of Mogharrabi,19 I&N Dec. 437 (BIA 1987). Mogharrabi also stood out as one of the very few BIA precedents up to that time actually granting, rather than denying asylum on appeal. (When I returned to Government service in 1995 as Chairman of the BIA, I was a “true believer” in making the as yet “unfulfilled promise of Cardoza and Mogharrabi” a reality! That’s still at the top of my “Due Process Forever Wish List!”)
In the immediate aftermath, while “parroting” the Cardoza and Mogharrabi generous standards, most Immigration Judges and BIA panels appeared to actually continue to apply the more restrictive “probability” or “more likely than not” standard. But, over time, the Circuit Courts of Appeals and sometimes even Board Members (most often in dissent) began “calling out” EOIR Judges for what appeared to be an intentional misapplication of the asylum standard.
A regulation change to provide a “rebuttable presumption of future persecution” arising out of past persecution also helped. That is, once the Article III Courts forced EOIR judges to actually apply, rather than ignore or disingenuously “work around,” the regulatory presumption. See generally, Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (particularly the concurring opinion by Judge Michael J. Heilman) for the “Bush I Era” historical impetus for the past persecution regulations. Ironically, the BIA sometimes had trouble “following up” on the generous teachings of their own Chen precedent.
Additionally, Judge Marks and other trained asylum experts from outside the Government who joined the Immigration Court prior to 2001 began actually applying the correct standard to grant asylum. (By stark contrast, Sessions and Barr “stacked and packed” the BIA with some of the most virulent anti-asylum judges in America while appointing far too many individuals with no immigration or asylum expertise whatsoever to be Immigration Judges at the trial level. The idea was to “build the deportation railroad” 🚂 with the BIA and Immigration Court as “mere whistle stops,” at best.)
Consequently, over time, between 1987 and 2013, there was a slow but steady increase in asylum grant rates as Courts and some Immigration Judges and BIA Members pushed EOIR to finally “live up” to the more generous Cardoza/Mogharrabi standard. A number of those who helped this push for justice for asylum seekers are now members of our “Round Table of Former Immigration Judges!”🛡⚔️
Knightess of the Round Table
The world certainly was a dangerous place for refugees in the years leading up to FY 2012, when asylum grants actually reached their “high water mark” of well over 50%. But, it has gotten even more dangerous over the past decade.
That, until recently, asylum grant rates had steadily declined since FY 2012 while conditions for refugees continued to worsen shows that the EOIR system is largely about politically driven enforcementmanipulation rather than a test of reality or a fair, efficient, competent, and legally sound approach to asylum law.
The modest but welcome rise in asylum approval rates under Biden happened notwithstanding a BIA that continues to churn out unduly and intentionally restrictive precedents and to botch basic asylum decisions on a regular basis! It also occurred under an Attorney General who has largely “looked the other way” and exhibited indifference as the BIA (composed mostly of “holdover” Trump-era appointees or “survivors” of the Trump regime) continues to abuse asylum seekers.
Lawyers and applicants who have kept fighting for their rights in a system designed to railroad and demoralize them deserve much credit for the improved results and for constantly battling to expose the “Garland BIA’s” gross deficiencies to the Article III Circuit Courts. That’s what the “New Due Process Army” is all about!
Just think what the asylum grant rate might look like with a better BIA of independent expert judges who consistently provided positive precedents and guidance on asylum law and consistently enforced them against those Immigration Judges who have improperly and unethically created “Asylum Free Zones” in some jurisdictions!
Think of how many lives could be saved with better judges at the trial, and particularly the appellate, levels of EOIR! Backlogs and unnecessary litigation would also begin to decrease — without bogus and wasteful “enforcement gimmicks” like Garland’s “Dedicated Dockets” designed and implemented from above by disconnected, sometimes clueless, bureaucrats as a toxic example of backlog-building “Aimless Docket Reshuffling!”
Not rocket science! 🚀 Too bad nobody at Garland’s DOJ appears to care much about human lives and taxpayer dollars going down the drain on an unfair, backlogged, and stunningly dysfunctional asylum system at EOIR and on the Southern Border. ☹️
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?
The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!
This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A).
With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!
The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!
The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration.
We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system.
Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t?
This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended!
Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.
Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock!
They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based?
Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most!
Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation rather than imposing more “guaranteed to fail” enforcement-only gimmicks?
Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.
And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!
An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!
The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!
S.F. Immigration Court fast-tracking cases in what critics say call a deportation conveyor belt
By Tal Kopan and Deepa Fernandes
A San Francisco immigration judge took less than an hour on Tuesday to order 23 people deported. But none of the immigrants was present and it’s unclear whether they knew about the hearing — even as they were deported for missing it.
The proceedings are part of a recently enacted effort the San Francisco Immigration Court says it’s undertaking to find immigrants it loses track of. Instead, advocates say the court has set up a deportation conveyor belt, one that fast-tracks removal orders before immigrants can make their case to stay in the country.
The practice appears to have started this summer, when immigration attorneys became aware of a subset of hearings being scheduled for immigrants whose mail was being returned as undeliverable. The court was notifying immigrants of the hearings by sending mail to the same incorrect addresses, practically ensuring few would show up.
In immigration law, not showing up at a hearing is enough to be ordered deported on the spot, in what’s known as an “in absentia” order of removal.
According to court data reviewed by The Chronicle, as many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.
ACLU of Northern California attorney Sean Riordan, who has been tracking the issue, compared the situation to a criminal proceeding where, if a defendant didn’t show up for a routine step, the judge declared them guilty with limited ability to challenge the verdict. What’s more, he said, the court scheduled the proceeding expecting the defendant not to show.
“Our society would not tolerate that, it’s just grossly unfair, and we shouldn’t tolerate something similar happening in the immigration courts,” Riordan said. “It’s especially problematic that the San Francisco Immigration Court is spending significant time and resources to obtain so many removal orders through a special docket in cases where they know people will not be able to appear for their hearings.”
At this time, the effort appears limited to the San Francisco court, one of 70 such venues nationwide that hear immigrants’ cases. But advocates fear other courts may see how many cases the San Francisco bench has closed through in-absentia orders and follow suit, saddling scores of immigrants with unknown deportation orders. The immigration court system is run entirely by the Department of Justice, which also employs the judges.
The (completely unnecessary and self-inflicted) “EOIR Travesty” continues! There are many, many ways that Garland could reduce his Immigration Court backlog (most covered by Courtside or elsewhere online) without stomping on any individual rights! But, this utter nonsense doesn’t happen to be one of them!
As anyone with even a passing familiarity with Immigration Court practice knows, DHS and EOIR are notorious for issuing defective notices and then creating illegal “in absentia” orders. The issue of bad notices has actually been to the Supremes twice recently, with the USG losing badly both times, and the possibility of yet a third trip on the horizon.
Yet, several overt rebukes from the Supremes about “unnecessary corner cutting” have engendered no fundamental changes in the notice system at either agency! Garland & Co. seem just as wedded to anti-due-process, wasteful “mondo enforcement gimmicks” at EOIR as Stephen Miller, “Gonzo” Sessions, and “Billy the Bigot” Barr!🤮
So much for the “racial justice agenda” at DOJ and the reputations of DAG Lisa Monaco, Associate AG Vanita Gupta, and AAG/Civil Rights Kristen Clarke, who have all “looked the other way” while their “boss” Garland continues to promote White Nationalist, anti-immigrant, resource wasting policies at EOIR.☠️
Then, incompetent, tone-deaf Dem politicos wonder why support among their “loyal progressive base” is fading fast? Progressives should “remember the EOIR disaster” and total lack of concern for those “fighting the good fight” in Garland’s disgracefully dysfunctional courts when any of Garland’s complicit lieutenants come up for future Article III judicial appointments!
Conduct like Garland’s at EOIR is a direct result of progressives allowing themselves to be “pushed around and disrespected” by a “Democratic Party Establishment” that gives not a hoot for immigrant justice, racial justice, or fair treatment of asylum seekers except when it’s time to solicit contributions or get out the vote! Vice President Kamala Harris appears to have taken a “leave of absence” on what was supposed to be one of her “signature issues!”
Garland’s “in your face tone-deafness” also contains a very clear message that progressive advocates aren’t “getting!” It’s going to take a “radical break from the past” to achieve any meaningful immigration reform at DOJ!
The BIA’s blunders in trying to help out their “partners” @ DHS Enforcement can sometimes seem almost comical. But, they are no laughing matter to those facing persecution or torture as a result! Why is Garland indifferent to life-threatening injustice in his courts? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Given the strength and rigor of the IJ’s underlying opinion, along with the BIA having exceeded its proper scope of review, we will vacate the BIA’s final order of removal and remand with instructions to reinstate the IJ’s opinion.
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There is the good, the bad, the ugly, and the absurdly horrible. This latest BIA travesty falls in the latter category.
Not surprisingly, the Circuit opinion quotes liberally from the BIA’s insipid, mealy-mouthed “bureaucratic double-speak” language! To paraphrase my BIA colleague the late Judge Fred Vacca, thank goodness the 3rd Circuit finally put an end to this “pathetic attempt at appellate adjudication.”
Interesting that rather than remanding to give the BIA a chance to deny again on some newly invented specious basis, the court just reinstated the IJ opinion. There should be a message here! But, Garland and his lieutenants aren’t “getting it!”
This case illustrates deep systemic and personnel problems that Garland has failed to address. Instead of summarily dismissing the DHS’s frivolous appeal with a strong warning condemning it, these types of bad BIA decisions contribute to the unnecessary backlog and both encourage and reward frivolous actions by the DHS.
Additionally, reversing, for specious reasons, a well-done and clearly correct IJ decision granting relief, just to carry out the wishes of DHS Enforcement and political bosses, is intended to discourage respondents and their attorneys while unethically steering Immigration Judges toward a “norm of denial.”
Abused women of color from the Northern Triangle have been particular targets of the EOIR’s seriously skewed anti-immigrant adjudications. This makes the Garland DOJ’s claims to be a “champion of racial justice” ring all the more hollow and disingenuous in every context. There will be no racial justice in America without radical EOIR reform!
What ever happened to our first ever woman of color Veep? Hypothesize that one of the BIA Appellate Immigration Judges responsible for this mess had come before the Senate Judiciary Committee for confirmation. Wouldn’t you have had some questions about judicial qualifications? So, why is it OK to continue to employ them in untenured Executive Branch quasi-judicial positions where they exercise life or death power over many of the most vulnerable among us, overwhelmingly persons of color, many women, lots of them unrepresented! Kamala Harris, where are you?
It’s all part of an improper “culture of denial” at EOIR, led and “enforced” by the BIA. Garland has disgracefully failed to come to grips with the “anti-due process” that he fosters every day that the “Miller Lite Holdover BIA” remains in their appellate positions.
For heavens sake, with unnecessary “TV Adjudication Centers” coming out EOIR’s ears, reassign these purveyors of bad law and appellate injustice to those lower “courts” where they can do less cosmic damage and real, better qualified appellate judges can “keep on eye” on them!
I keep thinking (or perhaps hoping) that eventually Circuits will tire of continually redoing the BIA’s sloppy work product and then having the cases come back again, sometimes years later, denied on yet another bogus ground!
On the flip side, Judge Garland seems to have infinite “patience” with well-documented substandard performance and painfully obvious anti-immigrant, pro-DHS bias on the part of his BIA.
Wrongful denial of CAT costs lives and can improperly condemn individuals to gruesome and painful death! This is no way to run a court system! I guess it’s easier to “tolerate” lousy judicial performance when you aren’t the one being unfairly and illegally condemned to torture!
After an extremely disappointing start, Attorney General Merrick Garland is finally bringing some much needed balance and immigration expertise to his broken, dysfunctional, hopelessly backlogged, and overall reeling Immigration Courts. He appears to be at least partially heeding the advice of experts and tapping into the deep pool of private sector, NGO, and clinical program talent to improve the balance, professionalism, fairness, and efficiency of the U.S. Immigration Courts.
After years of a toxic combination of neglect, mismanagement, outright “weaponization,” and poor to haphazard judicial selections biased against well-qualified immigration and ImmigrationCourt experts from the private/NGO/academic sectors, the latest round of judicial hiring by Garland shows a more appropriate and diverse balance of private sector experts, government employees with relevant immigration experience, and those with other types of judicial experience.
Here’s the complete list of 24 new Immigration Judges from EOIR:
For me, personally, two names particular “jumped out.” First, “NDPA All-Star”🌟 JudgeRebecca J. Walters, until recently the Managing Attorney at nonprofit AYUDA’s Virginia Office, will be Assistant Chief Immigration Judge at the Arlington Immigration Court! (Full disclosure: I am on the AYUDA Advisory Board.) Her “specialty” at AYUDA was litigation on behalf ofSIJS applicants before both immigration agencies and the Virginia State Courts.
Hon. Rebecca J. Walters Assistant Chief Immigration Judge Arlington, VA PHOTO: AYUDA
Rebecca and her colleagues appeared before me at the Arlington Immigration Court. Among many other things, she was legal intern at our court while a student at the Washington College of Law at American University. We’ve all come a long way since the days when Rebecca and her fellow interns and JLCs used to “run the stairs” with Judge John Milo Bryant and me when our court was at Ballston, VA!
The second notable appointment is JudgeLouis Gordon, until recently of Los Angeles, now at the San Francisco Immigraton Court. He is the son of the late beloved ImmigrationJudge Nate Gordon. As I mentioned in an obit for his father in Courtside,Louis, then a highly regarded private attorney, argued before the BIA when we visited Los Angeles during my tenure as BIA Chair.
Congrats to Judge Walters, Judge Gordon, and the other recent selections.
Don’t get me wrong! It’s going to take more— much, much more — than a few better judicial appointments to right the rapidly sinking ship at Garland’s EOIR. But, at least it appears to be progress. And, every voice of expertise, fairness, due process, and humanity in a system seriously lacking in all the foregoing qualities helps save lives and generate some energy for systemic improvements, in both “culture” and actual judicial performance, that have long been missing at EOIR.
Yes, although the honchos at the top of EOIR’s “Management Pyramid” would have you believe otherwise, practical, positive change can often come from below in any organization, even one as totally and completely screwed up as EOIR!
Amazingly, the guys at the bottom of this structure sometimes know more about fixing problems than those sitting at the top! Kheops-Pyramid Wikipedia Commons License
