⚖️👩🏻‍⚖️👨🏻‍⚖️ NAIJ’s HON. MIMI TSANKOV & HON. SAMUEL COLE HEADLINE SESSION ON BACKLOG & CRISIS IN U.S. IMMIGRATION COURTS @ NATIONAL PRESS CLUB — Wed. Oct. 18 @ 10:00 AM EDT!

Honorable Mimi Tsankov
U.S. Immigration Judge
President, National Association of Immigration Judges (“NAIJ”)

Hon. Samuel B. Cole
Executive Vice President
NAIJ
PHOTO: NAIJ

Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18

October 16, 2023, 5:13 pm

WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.

NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)

An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.

Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).

The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.

PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525

Cision

View original content to download multimedia:https://www.prnewswire.com/news-releases/federal-immigration-judges-mimi-tsankov-and-samuel-b-cole-to-address-immigration-courts-backlog-at-headliners-newsmaker-oct-18-301958051.html

SOURCE National Press Club

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The dysfunctional U.S. Immigration Courts are the where “the rubber hits the road” for American justice — the “retail level” of our court system. Deterioration of individual rights in the U.S. legal system for immigrants, people of color, women, non-Christian religious minorities, and the LGBTQ+ community can all be traced to antecedents in the “too often due process and common sense free zone” of EOIR courts held “captive” within our DOJ. See, e.g., https://immigrationcourtside.com/2023/10/08/%f0%9f%a4%af-jason-the-asylumist-dzubow-explores-the-incredible-exploding-asylum-backlog-predictably-eoirs-aimless-docket-reshuffling/

Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.

This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)

The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.

Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.

🇺🇸 Due Process Forever!

PWS

10-17-23

⚖️👩‍⚖️ EOIR NEWS: HON. SHEILA McNULTY NEW CHIEF IMMIGRATION JUDGE!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Can new Chief Immigration Judge Sheila McNulty get this poor little fella back on his feet? Only time will tell!

Sources report that A.G. Merrick Garland has appointed Judge Sheila McNulty to be the Chief Immigration Judge at EOIR. Previously, she was the Regional Deputy Chief Immigration Judge.

The position had been vacant since the resignation of the previous Chief Immigration Judge, Tracy Short, in July 2022. Unlike Short, who came from ICE with no prior judicial experience, Chief Judge McNulty has been an Immigration Judge since 2010. For the last reported period that she was an Immigration Judge at the Chicago Immigration Court, 2014 -2015, Judge McNulty granted 52.3% of asylum cases, according to TRAC. She became an Assistant Chief Immigration Judge in 2015, and was promoted to Regional Deputy Chief Immigration Judge in 2021.

Her official EOIR bio is below.

Sheila McNulty
Regional Deputy Chief Immigration Judge [Now Chief Immigration Judge]

Sheila McNulty was appointed as Regional Deputy Chief Immigration Judge in March 2021. Judge McNulty received a Bachelor of Arts in 1984 from Miami University of Ohio and a Juris Doctor in 1991 from New England School of Law. From November 2015 to March 2021, she served as an Assistant Chief Immigration Judge, and during this time, from February 2020 to March 2021, she also served as Acting Deputy Chief Immigration Judge for the West. From October 2010 to November of 2015, she served as an Immigration Judge at the Chicago Immigration Court. From 2000 to 2010, Judge McNulty served as a Special Assistant U.S. Attorney with the former Immigration and Naturalization Service (INS) and U.S. Immigration and Customs Enforcement, in the Chicago Office of the U.S Attorney’s Office for the Northern District of Illinois. From 1991 to 2000, she served as a trial attorney for the former INS, entering on duty through the Attorney General’s Honors Program. From 1985 until 1988, Judge McNulty worked as a community activist and organizer in Cambridge, Massachusetts. Judge McNulty is a member of the Illinois Bar.

Congratulations and good luck to Chief Judge McNulty in her new leadership role. The Immigration Judge program needs help — lots of it!

Anti-asylum attitudes among some judges, wildly inconsistent decisions, “asylum free zones,” poor training, unprofessional conduct, lack of expertise, little quality control, emphasis on “productivity over due process,” inadequate law clerk support, over-reliance on oral decisions, debilitating backlogs, shortage of courtrooms and chambers, unreliable technology, “Aimless Docket Reshuffling” to meet the agenda of DOJ politicos, poor relations with the bar, lack of a due process vision, and cratering morale are among the many existential problems facing the new Chief Judge!

🇺🇸 Due Process Forever!

PWS

04-19-23

🎞🎭 MOVIES/DRAMA: “THE COURTROOM” GOES TO TRIBECA!

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

Hon. “Sir Jeffrey” Chase reports:

I talk all the time about the play “The Courtroom,” for which I served as a consultant, and then actually performed in four times on stage.

The film version (which I am not in) is now an entry in the Tribeca Film Festival, where it can be screened from home over a ten-day window next month. The “script” is entirely taken from the transcript of the Immigration Court hearing of an actual case, and then from the transcript of that same case as argued before the Seventh Circuit (Keathley v. Holder).

Onstage, several actual judges (present and retired) took turns playing the judge in the naturalization scene at the end. Two other retired IJs in addition to myself (Betty Lamb and Terry Bain), and one presently sitting IJ (Mimi Tsankov) performed. But in the film, the actor BD Wong plays Judge Denny Chin of the Second Circuit Court of Appeals; the real Judge Chin also performed that same role onstage. We all got to write our own remarks to address the newly naturalized audience. Judge Chin spoke so poignantly about his own family immigration story, and his remarks appear in the film.

In real life, this was another case in which the IJ and the BIA got it wrong. I feel this story is a tribute to those Paul has labeled the “New Due Process Army.” The real life Chicago attorney Richard Hanus had a brilliant legal argument, his very sympathetic client and her US citizen husband maintained faith in both him and in our legal system, and in the end, justice prevailed.

I hope that you will watch the film (Kristin Villanueva, who plays the respondent, was so moving in the role onstage; my wife, no stranger to immigration court, cried the first time she saw it performed), and maybe let others in our community know of it. Waterwell, the performing arts company responsible for this, is comprised of truly wonderful, talented, and caring people dedicated to creating socially conscious works.

https://www.thecourtroomfilm.com/

Skip to Content

The COURTROOM

Current Page:

Home

Watch the Film

”the legal thriller is given a bold and innovative twist”

– Saidah Russell

Stream the Film at Tribeca Film Festival June 16 – 26

Tickets are limited. Buy them HERE.

Watch the Film (password required)

CAST & CREDITS

Directed by Lee Sunday Evans

SCREENWRITER: Arian Moayed

CAST: Marsha Stephanie Blake, Michael Braun, Kathleen Chalfant, Hanna Cheek, Michael Chernus, Michael Bryan French, Mick Hilgers, Linda Powell, Kristin Villanueva, BD Wong

EXECUTIVE PRODUCERS: Anne Carey, Ryan Chanatry, Gena Konstantinakos, Lee Sunday Evans, Arian Moayed

PRODUCERS: Damon Owlia, Jonathan Olson

ASSOCIATE PRODUCER: Rebecca Choi

CINEMATOGRAPHER: Daisy Zhou

EDITOR: Cecilia Delgado

PRODUCTION DESIGNER: Emmeline Wilks DuPoise

COSTUME DESIGNER: Junghyun Georgia Lee

COMPOSER: Daniel Kluger

For sales enquiries: United Talent Agency, Jake Carter + Rachel Viola

For press enquiries: Falco

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

I don’t know whether Waterwell has “academic rates” or “specials” for social justice fundraising. This could be a great teaching tool for clinical and other immigration professors as well as a potential fundraiser for clinics and community nonprofits dedicated to social justice.

Thanks, Jeffrey, for highlighting this great work. And thanks for the “mini-review.”

🇺🇸Due Process Forever!

PWS

05-28-22

⚖️👩🏻‍⚖️👩🏾‍⚖️🗽FEATURE: THE LATEST ISSUE OF THE ABA’S “JUDGES’ JOURNAL” HIGHLIGHTS THE CONTINUING FAILURE OF OUR IMMIGRATION COURTS AND THE COMPELLING NEED FOR AN ARTICLE I IMMIGRATION COURT! — Round Table Leader 🛡⚔️ Hon. Joan C. Churchill Makes The Case In Powerful Lead Article!

Judge Joan Churchill — Honorable Joan Churchill
Retired U.S. Immigration Judge
Member Round Table of Retired Judges

Here’s the link to Joan’s super timely article in the Judges’ Journal. ABA membership is required to access it:

https://www.americanbar.org/groups/judicial/publications/judges_journal/2022/winter/compelling-reasons-an-article-i-immigration-court/

The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.

🇺🇸Due Process Forever!

PWS

03-12-22

⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

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

PRACTICE ALERTS

Mandatory E-Filing with EOIR, Starting FRIDAY

EOIR Updates

EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.

EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.

EADs Valid Longer

USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories

NEWS

After review, U.S. maintains border policy of expelling migrants, citing Omicron

CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.

Bill Aims to Remove US Immigration Courts from Executive Branch

VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.

148 Groups Ask Biden To Fund $50M For Migrant Atty Access

Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.

83,000 Afghans Made It To The US. Now They Need Lawyers

Law360: The arrival in the United States of 83,000 displaced Afghans following the military’s withdrawal from Afghanistan over the summer has put stress on the already overburdened immigration system and created an access to justice crisis that Congress needs to address, attorneys say. See also Additional $1.2 billion in resettlement assistance authorized earlier this week by President Biden.

Internal documents show heated back-and-forth between DeSantis and Biden admin over care of migrant children

CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.

Feds Pressed To Free Immigrant Detainees As Ill. Ban Kicks In

Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.

Mexican authorities evict Tijuana migrant camp near border

WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.

Robot Dogs Take Another Step Towards Deployment at the Border

DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”

LITIGATION/CASELAW/RULES/MEMOS

BIA Reinstates Removal Proceedings After Finding §2C:35-10(a)(1) of New Jersey Statutes Annotated Is Divisible with Respect to Specific Substance Possessed

AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)

BIA Dismisses Appeal After Finding §714.1 of Iowa Code Is Divisible with Regard to Type of Theft

AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)

BIA Rules Respondent’s Conviction for Conspiracy to Commit Wire Fraud Constitutes a Particularly Serious Crime

AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)

Unpub. BIA Termination Victory

LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”

CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility

AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)

CA1 Says Conviction in Rhode Island for Driving a Motor Vehicle Without Consent Is Not Categorically a Theft Offense

AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)

CA1 Holds That BIA Properly Applied Heightened Matter of Jean Standard to Petitioner’s Waiver Request

AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)

CA4 Finds That “Prosecution Witnesses” Is Not a PSG

AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)

CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application

AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)

4th Circ. Revives Guatemalan Asylum Case Over Family Ties

Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.

CA5 Finds Proposed PSG of Honduran Women Unable to Leave Domestic Relationship Was Not Cognizable

AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)

CA5 Finds Petitioner Removable Under INA §237(a)(2)(A)(ii) for Having Been Convicted of Two CIMTs After Admission

AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)

CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity

AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)

CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction

AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)

CA5 Withdraws Prior Opinion and Issues Substitute Opinion in Parada-Orellana v. Garland

AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)

CA6 Finds Petitioner Forfeited Ineffective Assistance Claim Because He Failed to Comply with Third Lozada Requirement

AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)

CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application

AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)

CA7 Says BIA Legally Erred by Considering Arguments That the Government First Raised on Appeal

AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)

CA8 Upholds BIA’s Decision Denying Motion to Reopen Even Though Petitioner Made a Prima Facie Case for Relief

AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)

CA9 Holds That BIA Sufficiently Complied with Notice Requirements Applicable to a Minor in Immigration Proceedings

AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)

CA9: Panel Nixes Deportation For Missing Court, Cites Faulty Notice

Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.

CA9 Finds Petitioner’s Conviction for Arson in California Was Not an Aggravated Felony

AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)

CA9 Declines to Rehear Velasquez-Gaspar v. Garland En Banc

AILA: The court issued an order denying the rehearing en banc of  Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)

CA11 Finds Petitioner Failed to Prove That Florida’s Cocaine Statute Covers More Substances Than the Federal Statute

AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)

Feds Fight Detention Probe In Migrant Counsel Access Suit

Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

Form Update: Form I-864, Affidavit of Support Under Section 213A of the INA, Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I-864EZ, Affidavit of Support Under Section 213A of the Act

USCIS: Starting April 7, 2022, we will only accept the 12/08/21 edition.

Form Update: Form I-824, Application for Action on an Approved Application or Petition

USCIS: Starting April 7, 2022, we will only accept the 12/02/21 edition.

RESOURCES

·         AILA: Practice Alert: Escalating Problems with Virtual Hearings and Contacting the Court

·         AILA: Can They Do It? The Myth of the Tech-Challenged Client

·         AILA: Sleep Debt: A Contributing Factor for Ethics Mishaps

·         AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion

·         AILA: Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue

·         AILA: Practice Resource: Fraudulent Document Standard and Matter of O–M–O–

·         AILA: Taking the Measure of Lozada

·         AILA Meeting with the USCIS Refugee, Asylum & International Operations Directorate

·         ASAP: February Updates

·         Asylos

o    The Bahamas: State protection for families of gang members who face persecution by gangs (AME2021-15)

o    Iraq: Situation of divorced, single mothers in Iraqi Kurdistan (MEN2021-19)

o    Hungary: Treatment of Roma Women and State Protection (CIS2021-09)

o    Russia: Domestic Violence (CIS2021-08)

·         CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

·         CLINIC: COVID & U.S. Citizenship and Immigration Services (USCIS)

·         CLINIC: COVID & Department of State

·         CLINIC: COVID & ICE

·         CLINIC: COVID & EOIR

·         MPI: Four Years of Profound Change: Immigration Policy during the Trump Presidency

·         USCIS Statement on the International Day of Zero Tolerance for Female Genital Mutilation

·         USCIS: Overview of myUSCIS for Applicants

EVENTS

2/8/22 EOIR to Host ECAS Information Session

2/8/22 Pandemic-Era Removal Proceedings: Practical Considerations

2/9/22 Updates and Options for Afghan Clients

2/9/22 DACA and Criminal Bars Issues

2/10/22 Request for Fee Waiver & Reduced Fee For Naturalization

2/14/22-2/15/22 2022 Crimes & Immigration Seminar

2/15/22 U Visa Filings and Bona Fide Determination

2/15/22 Anatomy of the USCIS System and Processes: Service Centers and Lockboxes

2/15/22 CGRS MCLE Webinar: Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/16/22 Acquisition of Citizenship

2/16/22 U Visa Webinar Series: Waiver of Inadmissibility

2/17/22 CGRS MCLE Webinar: Overview of Bars to Fear-of-Return Relief

2/22/22 Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/23/22 Filing Administrative Claims for Abuse and Misconduct by Immigration Officers

2/24/22-4/7/22 Introduction to Family-Based Immigration Law

2/24/22 CGRS MCLE Webinar: Filing a Petition for Review at the Ninth Circuit: Overview of Procedures and Practical Considerations

2/25/22-2/26/22 Annual New York Asylum & Immigration Conference

2/28/21 ASISTA: Hot Topics in U and VAWA Cases

3/3/22 Before You Meet Your Removal Client: NTA, Form I-213, and DHS Charges

3/4/22-2/25/22 Update From the U.S. Consulate in Ciudad Juarez

3/4/22-2/25/22 Selected Issues in U Nonimmigrant Status

3/11/22 Inaugural Fourth Circuit Asylum Law Conference

3/15/22 Criminal Sentences and Immigration

3/21/22 Comprehensive Overview of Immigration Law (COIL)

3/23/22 Intermediate Intensive VAWA Training

3/28/22-4/14/22 NYIC Overview of Immigration Law Training (Save the Date)

4/6/22 Initial TPS Applications

4/7/22 CGRS MCLE Webinar: Motions Before the Board of Immigration Appeals

4/12/22 Introduction to Bond Proceedings

4/27/22 U Visa RFEs

4/28/22 Motions to Reopen Removal Proceedings

5/4/22 California Pardons and Post-Conviction Relief

5/10/22 Asylum Claims for Young People

5/17/22 Advocating for Prosecutorial Discretion for Clients in Removal Proceedings

5/19/22 Special Immigrant Juvenile Status: Your Client’s I-360 Is Approved, Now What?

5/24/22 Obstacles to TPS Eligibility

6/7/22 Asylum and Employment Authorization

6/8/22 Naturalization for People with Disabilities

ImmProf

Monday, February 7, 2022

·         U.S. Hispanic population continued its geographic spread in the 2010s

Sunday, February 6, 2022

·         Poetry Break: Immigration by Ali Alizadeh

·         Refugee Olympic Team at 2022 Winter Olympics in Beijing?

·         After review, Biden Administration maintains Title 42 border policy of expelling migrants

Saturday, February 5, 2022

·         WaPo Debunks JD Vance Talking Points on Biden & Unlawful Migration

·         NPR Politics Podcast: Democratic Activists Say Biden Has Failed To Deliver On Immigration Promises

Friday, February 4, 2022

·         From the Bookshelves: Joan is Okay by Weike Wang

·         The Toll of MPP (Remain in Mexico Policy) on Children

·         “The Disillusionment of a Young Biden Official” by Jonathan Blitzer for The New Yorker

·         Bill Introduced in Congress to Make Immigration Courts More Independent

·         Shalini Bhargava Ray on “Shadow Sanctions for Immigration Violations” in Lawfare

Thursday, February 3, 2022

·         Border Patrol to Use Robot Dogs

·         DACA Recipients Continue to Contribute

·         Immigration Article of the Day: Restructuring Public Defense After Padilla by Ingrid Eagly, Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian

Wednesday, February 2, 2022

·         New TPS Advocated for Migrants from Honduras, Guatemala, El Salvador, and Nicaragua

·         San Francisco apologizes for history of racism, discrimination against Chinese Americans

·         A Mexican American is the first Latina president of Harvard Law Review

·         From the Bookshelves: Go Back to Where You Came From: And Other Helpful Recommendations on How to Become American by Wajahat Ali

·         MPI Releases Report on Immigration Policy Changes During Trump Administration

·         Covid infections surge in immigration detention facilities

Tuesday, February 1, 2022

·         In Today’s WTF Deportation News

·         DeSantis Plays Politics with the Lives of Migrants

·         Congress, not Biden, should be held accountable for immigration reform

Monday, January 31, 2022

·         WES: Canada’s Enduring Appeal to Prospective Immigrants in the Face of COVID-19

·         Race, Sovereignty, and Immigrant Justice Conference

·         AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal

·         From the Bookshelves: No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border by Justin Akers Chacón and Mike Davis

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Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.

ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings!

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 9, 2022

So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future.

BIA Chairman Wetmore, a former OILer who, whatever his shortcomings might be, does recognize the importance of not “overtly dissing” the Article IIIs, correctly says “No.” Perhaps, as suggested by my colleague Hon. “Sir Jeffrey” Chase, Wetmore had in mind that the 7th Circuit previously threatened to hold the Board in contempt for willfully ignoring its orders. See https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?

The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.

Wonder why there are gross inconsistencies and endless backlogs at EOIR? A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!

The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.

By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.

GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedents standing for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.

Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE, but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ?

These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put due process, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.

The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!

Due Process Forever!

PWS

02-09-22

HOW TO RUIN A COURT SYSTEM: SOME OF THE “BEST & BRIGHTEST” IMMIGRATION JUDGES QUIT IN PROTEST OVER REGIME’S BIASED POLICIES AND “WEAPONIZATION” OF IMMIGRATION COURTS INTO DHS ENFORCEMENT TOOL BY DOJ POLITICOS!

CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN

https://www.cnn.com/2019/12/27/politics/immigration-judges-resign/index.html

Priscilla Alverez reports for CNN:

Immigration judges quit in response to administration policies

By Priscilla Alvarez, CNN

Updated 6:39 AM ET, Fri December 27, 2019

Washington (CNN)Lisa Dornell loved her job. For 24 years, she sat on the bench in Baltimore’s immigration court, hearing hundreds of cases of immigrants trying to stay in the United States.

“It was an honor. It was a privilege to be able to preside over so many different cases and be able to grant relief to people who needed relief,” Dornell told CNN in an interview.

But she walked away from that job in April — a decision that still invokes a wave of emotion when she recalls it. “The toxic environment made it both harder and easier to leave,” Dornell said.

Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.

The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority.

Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. The bogged-down system has led to immigration cases being pushed out years in the future, leaving many immigrants residing in the US unsure if they’ll be allowed to stay or be ordered removed.

Immigration judges accuse Justice Department of unfair labor practices

President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, the administration has sought to hire more immigration judges. Most recently, the immigration judge corps hit a record high, though the Justice Department still has to contend with judges leaving over policy disagreements.

In a statement to CNN, the Justice Department’s Executive Office for Immigration Review spokeswoman, Kathryn Mattingly, said the agency “continually plans for attrition, and both improvements to the hiring process and a policy of ‘no dark courtrooms’ help minimize the operational impact of (immigration judge) separations and retirements.”

The agency doesn’t track individual reasons for retirements or departures, Mattingly said.

Immigration judges — employees of the Justice Department — are charged with following the policies set by each administration.

“The nature of the job ebbed and flowed as administrations changed,” Dornell recalled. “It was always tolerable. We all work with a realization that it’s the prerogative of the administration to implement policies as they see fit.”

The Trump administration was no exception. Trump’s first attorney general, Jeff Sessions, implemented a series of changes to the immigration court system that have continued under his successor, William Barr.

The Justice Department has imposed case quotas, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges’ ability to exercise discretion in some cases and moved to decertify the union of immigration judges.

Over time, those actions prompted immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department despite initial plans to stay longer.

“I felt then and I feel now that this administration is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general,” said Ilyce Shugall, who served as an immigration judge in San Francisco from 2017 until March of this year. “And I just couldn’t be a part of that.”

‘It started to wear on me’

Over his nearly two-year tenure as attorney general, Sessions transformed the courts by flexing his authority to overrule decisions, hire more immigration judges and set a case quota for judges.

One of Sessions’ addresses to the workforce, in particular, resonated with judges. In a June 2018 speech in Washington, Sessions denounced the system, which he believed was encouraging migrants to make baseless asylum claims, and reminded judges of their role in cracking down on those claims.

“You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly and consistently,” Sessions said. Later that day, he issued a ruling that removed asylum protections for victims of domestic violence and gang violence.

“To be honest with you, in that meeting room, there were a number of judges that cheered and clapped when he announced it,” said former immigration judge Rebecca Jamil, referring to the ruling that would follow his address. “It was grotesque to me.”

Jamil, who had been based in the San Francisco immigration court, had a docket that included migrants who had fled their home countries, claiming they were victims of domestic violence. Sessions’ decision took direct aim at those cases.

Another judge in attendance at Sessions’ speech, Denise Slavin, recalled jaws dropping. Slavin had become a judge in 1995, serving in Florida before finishing her tenure in Baltimore in April of this year.

Sessions’ address and follow-up ruling was among a series of policy changes that began to wear on judges.

“When you’ve been around that many administrations, you learn to adapt. You see a lot of different things. Nothing like this,” said James Fujimoto, a former Chicago immigration judge who started on the bench in 1990 and also retired in April.

In particular, the administration began rolling out changes that dictated the way judges were expected to proceed with cases, thereby tightening control of the immigration courts. For example, the Justice Department said it would evaluate immigration judges on how many cases they close and how fast they hear cases.

Earlier this year, the Justice Department also issued a new rule that gives more power to the director of the Executive Office for Immigration Review. It allows the Justice Department-appointed director — currently James McHenry — to step in and issue a ruling if appeals are not completed within a certain time frame.

“It started to wear at me,” said Jennie Giambastiani, a former Chicago immigration judge who joined the bench in 2002 and left this year. “The great number of cases coming in and the way it was expected we handle them.”

Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told CNN that for the majority of people leaving their roles it’s a result of the “hostility and insulting working conditions.”

Tabaddor noted that there’s been a pattern of new judges either leaving to return to their old jobs or taking other jobs within the government.

“This is not what they signed up for,” Tabaddor said, referring to policies designed to dictate how judges should handle their dockets.

Judges who have since left the department expressed similar concern over those policies. Dornell called the situation “intolerable.”

Shugall recalled the challenges she had faced in trying to move forward with cases in a way she thought was appropriate. “I felt like as more and more policies were coming down, it was making it harder and harder to effectively hear cases in the way that I felt was appropriate and in compliance with the statute regulations and Constitution,” Shugall said.

At an event earlier this year, McHenry rejected criticism that judges are vulnerable to pressures from the attorney general.

“Most judges that we’re familiar with, and I don’t think that immigration judges are any exception, when they’re on the bench, they know what their role is as a judge,” he said. “We’ve had no allegations of anyone reaching down to specific judges telling them, ‘You have to rule this way; you have to rule that way.’ ”

Justice Department hires new judges

Earlier this month, the Justice Department announced 28 new immigration judges, bringing the number of such judges to more than 465, a record high. The majority come from government backgrounds.

It’s not unusual for administrations to hire people who’ve worked in government, but under the Trump administration, Booz Allen Hamilton, at the direction of the Justice Department’s Executive Office for Immigration Review, issued a report recommending that the agency diversify the experience of immigration judges.

The Justice Department’s hiring practices have been criticized by House Democrats, who say whistleblowers have previously raised concerns about political discrimination in the hiring of immigration judges. The department has denied that political ideology has been a factor.

The direction of the nation’s immigration courts is also a source of concern among immigrant advocate groups. This month, groups filed a wide-ranging lawsuit, alleging that the Trump administration has manipulated the immigration court system to serve an “anti immigrant agenda.”

It remains to be seen what changes, if any, are in store for the court system, but some of those who have already left their posts as judges carry guilt for departing, concerned about who may fill their jobs.

“The biggest thing I contended with is who is going to replace me,” Jamil said. “I knew I was a fair judge.”

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

I’m proud to say that all of the quoted former Immigration Judges are members of our Round Table of Former Immigration Judges, committed to preserving and advancing Due Process and judicial independence.

Apparently, EOIR headquarters and DOJ bureaucrats now refer to Immigration Judge decisions as “policy decisions,” thereby dropping any pretense that they are fair and impartial quasi-judicial adjudications under the law.

As for the ludicrous claim that this is anything approaching a legitimate independent judiciary, as one of my Round Table colleagues succinctly put it: “The political arm of DOJ’s assertion that IJs are treated independently is so much BS.”

Yup! Congratulations and many thanks to Judge Dornell and the others who spoke out in this article!

So, Immigration Judges, who lack the life tenure and protections of independence given to Article III Judges, put their careers and livelihoods on the line for Due Process and the rule of law, and, frankly, to save vulnerable lives that deserve saving. Meanwhile, the majority of Supreme Court Justices and far too many Article III Courts of Appeals Judges just bury their judicial heads in the sand and pretend like the outrages against Due Process, fundamental fairness, and the rule of law aren’t really happening in Immigration Court and that human lives aren’t being ruined or lost by their derelictions of duty. Has to make you wonder about their ethics, courage, and commitment to their oaths of office, as well as what the purpose of life tenure is if all it produces is complicity in the face of tyranny that threatens to destroy our Constitution and bring down our republic.

The Article IIIs are providing some rather sad examples and bad role models for today’s aspiring lawyers.

PWS

12-27-19

HON. JEFFREY S. CHASE: The Drama Of Immigration Court!

Feb 10 All The World’s A Stage (including the 2d Cir.!)

“How did we get here? How the hell…

Pan left – close on the steeple of the church.”

Jonathan Larson, “Halloween,” from Rent

The above lines popped into my head as I sat in an ice-cold dressing room in the basement of Judson Memorial Church in Greenwich Village just prior to curtain for the final performance of the world premiere run of Waterwell’s play The Courtroom. I was performing the role of the judge in the final scene who conducts a naturalization ceremony in which the journey of the protagonist, Elizabeth Keathley, through the immigration system ends with her becoming a U.S. citizen. The castwas comprised of stars of stage and screen, including a Tony Award winner, and a Tony nominee and Obie, Drama League, and Outer Critics Circle winner. “How did I get here?”

The Courtroomis the result of the inspired vision of Waterwell’s co-founder, Arian Moayed, himself a Tony-nominated Broadway actor who currently plays Stewie on the HBO hit Succession. A civic-minded theater company, Waterwell has staged musicals written during WW II aboard The Intrepid with a cast of actors and veterans, and a bilingual Farsi-English production of Hamlet set in 1918 Tehran. (Waterwell also runs an incredible educational program with New York City High School students, and its film division produces the Emmy-nominated web series The Accidental Wolf.)

An immigrant himself, Arian was moved by his own family history to respond to the present immigration climate, and took the unorthodox approach of seeking out actual immigration court transcripts to serve as the script. The production’s wonderful associate producer, Madelyn Murphy, quickly connected with Chicago immigration attorney Richard Hanus. He suggested the case of Elizabeth Keathley, whose path to a green card based on her marriage to a U.S. citizen was put in jeopardy over an innocent mistake regarding voter registration while applying for a driver’s license. Years later, Elizabeth prevailed on appeal to the 7th Cir. Court of Appeals in Keathley v. Holder, when Chief Judge Frank Easterbrook was persuaded by Hanus’s argument that the criminal common-law defense of entrapment by estoppel should apply in the immigration law context.

The script for the first act of The Courtroomis the verbatim transcript of Ms. Keathley’s immigration court proceedings in 2008. The script for the second act is the verbatim oral argument before the 7th Cir. and the panel’s written decision. So instead of a piece written by a playwright seeking to make a statement about our immigration system, one case plucked from that system was allowed to speak for itself. I had the pleasure of attending the first table read-through at Waterwell’s Manhattan offices. I remember Arian asking “Will this work as drama?” but he had a strong feeling that it would, and his instincts proved right.

What I found compelling about the case was that everyone involved in the immigration court hearing was respectful, professional, and thoughtful. After witnessing the complete immigration court hearing, the audience does not feel animosity towards the judge or ICE attorney. Nevertheless, the wrong result was reached. To me, an important theme is that of faith in an imperfect system – and not only the faith of the protagonist and her loving husband who are unexpectedly caught in a system they don’t understand, or of the brilliant lawyer who perseveres knowing that the correctness of his argument is no guarantee of a satisfying outcome. It also speaks to the faith that our justice system requires from society, a point I touched on in my stage remarks.

Waterwell’s managing director, Adam Frank, came up with the idea for a third act portraying Elizabeth’s naturalization ceremony. Adam told me the idea was inspired by his hearing Arian speak emotionally about his own naturalization, an experience that native-born Americans never have. So in the last act, the entire audience is naturalized. The role of the judge in that last scene was played by actual judges. My fellow former immigration judge, Betty Lamb, sitting immigration judge Mimi Tsankov, Magistrate Judge Sanket J. Bulsara of the Eastern District of New York, and myself took turns playing the role. And each of us were allowed to write our own remarks following the oath. This imbued each performance with a personalized view of the process in the words of actual judges who have performed these ceremonies in real life. My remarks are copied below.

I was first invited to perform at one of the two performances held inside the main courtroom of the U.S. Court of Appeals for the Second Circuit, in the Thurgood Marshall Courthouse in lower Manhattan. (Other performances were held at Fordham Law School, St. Mark’s Church in the East Village, and Judson Church). For the courthouse performances, audience members had to have their names on a list, go through security, and check their cell phones at the door. I still can’t believe that I was fortunate enough to perform on the stage of the Second Circuit Court of Appeals, a once in a lifetime experience. The courtroom held an energy unlike any of the other venues. The setting created the sense of watching an actual hearing in a real courtroom, without the usual sense of separation when sitting in the audience watching a play on a stage. As one of the actors pointed out, in the courtroom performances, when he read the line “please rise,” the whole audience rose to its feet without hesitation.

Ruthie Ann Miles, Kathleen Chalfant, Happy Anderson, Kristin Villanueva, Linda Powell, Michael Braun, Michael Bryan French, Mick Hilgers, and Hanna Cheek comprised the brilliant cast. Lee Sunday Evans’ inspired direction had to contend not only with the unorthodox nature of the script, but with the constantly changing layouts and acoustics over the four different venues. In the hands of these outstanding professionals, it all worked beautifully.

The real-life Keathleys and Richard Hanus traveled to New York and attended two of the performances, sitting in the audience just a few rows behind the actors portraying them.

I was left in awe of the talent and dedication of all involved; it was also without exception the warmest, kindest group of individuals I have ever had the privilege to be involved with. Thanks to all of them for briefly welcoming me into their world.
Hereis a link to a New York Times’ article about the play.

My remarks from the naturalization ceremony:

“It is my great honor and pleasure to congratulate you all and address you for the first time as fellow citizens of the United States. Performing these ceremonies is undoubtedly the best part of my job. Judges have a number of powers, but none is greater or more humbling than the act we just performed together. Just a few minutes ago, you were citizens of many different countries. But by raising your hands and repeating an oath, you all instantly, almost magically, became citizens of the United States. To fully comprehend the significance of this, think back to the first time you ever heard of this country – maybe from a book or in a movie, or through a family friend or relative who was visiting from America. Imagine if you were told at that moment that you would be standing here today as an American citizen. Hopefully, that memory will capture the wonder of this great ceremony.

For some of you, the path to U.S. citizenship may have been short and without incident; others might have traveled a longer, more difficult road to arrive here today. Regardless, you should all be congratulated on reaching this most important milestone.

You should not feel a sense of loss today. American citizenship does not erase your past; to the contrary, it simply adds a new dimension to who you already are. We are a country of hyphenated Americans. Whether we are Mexican-American, African-American, Iranian-American, or Filipino-American, we should all wear our heritage as a source of pride, as the culture, thoughts and traditions that we bring to the American experience makes all of us richer.

There are of course responsibilities that come with citizenship. I’m going to mention two such responsibilities today. First, you have the responsibility to perform jury duty if called upon to do so. In a democracy, faith in our judicial institutions is paramount. However, our courts will not always reach the right result. But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.” To keep this public trust, we must all try our best every day to get it right. Your participation in this system as part of a jury of one’s peers, and your fairness in trying to reach the correct result under the law is crucial to this process.

The other responsibility I want to mention today is the responsibility to vote. As a U.S. citizen, your vote counts the same as that of anyone else, no matter how rich or powerful they may be. You should exercise that right by voting responsibly and often. No election is too small for you to exercise your right to vote. As Abraham Lincoln famously said in his Gettysburg Address, this is a government of the people, by the people and for the people. As of today, you all now share the responsibility for ensuring that those words remain true.

Once again, congratulations!”

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Thanks, Jeffrey. I’m speaking with Adam Frank tomorrow about how we might use this production as a teaching vehicle in a number of contexts!

I always said that being an immigration was “50% scholar, 50% performing artist.”

And, congrats to “Our Gang” member, retired Immigration Judge Betty Lamb on making her stage debut!

Watch the “trailer/teaser” for “The Courtroom” here:

http://waterwell.org/watch-the-courtroom-trailer/

PWS

02-11-19

Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding

BIA HEADNOTE:

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND

OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole

KEY QUOTE FROM MAJORITY:

We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

KEY QUOTE FROM DISSENT:

I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”

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

Judge Cole’s dissent makes sense to me. Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to issue published precedents by three-judge panels, rather than en banc.

This allows 80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.

PWS

05-23-18

HON. ROBERT VINIKOOR TELLS US EXACTLY WHY QUOTAS ARE A TOXIC IDEA FOR US IMMIGRATION COURTS — One Of the “Best Ever” Tells It Like It Is!

https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/

Judge (Ret.) Vinikoor writes:

Take it from a former judge: Quotas for Immigration Judges are a Bad Idea.

On March 30^th, the U.S. Department of Justice and Attorney General Sessions announced that Immigration Judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregards due process. As a recently retired immigration judge, I believe this decision is short sighted and not fair to judges, or to the parties that appear in court on either side (government or immigrant and their families), or to our legal system.

Attorney General Sessions says that the current back log in immigration courts is a primary reason for this entirely new quota system; however, I know from experience that quotas will not reduce backlog and will in fact increase our current backlog problems. About 15 years ago, former Attorney General John Ashcroft attempted to reduce backlogs at the Board of Immigration Appeals (the court that hears all the appeals from immigration judges’ decisions). Ashcroft eliminated the Board’s authority to review de novo (or, review as if hearing the case for the first time) decisions of the Immigration Judges with regard to findings of fact and determination of an immigrant respondent’s credibility. As a result, the Board began issuing summary two page decisions, with little or no legal analysis. Those shortened decisions did reduce the amount of time cases were pending before the Board of Immigration Appeals, but had the opposite effect on the actual backlog of immigration cases as thousands of petitions for review were filed throughout the country with the Courts of Appeal. Given the increase in the number of filings and the decrease in the thoroughness of the decision, the Courts of Appeal became extremely hostile to the quality, professionalism and final agency work product of the immigration court judges and particularly the Board. Many cases were remanded, or sent back to immigration judges, for new hearings based on perceived mistakes at the trial level or at the Board, resulting in further delays in court processing times and the issuance of final decisions.

Attorney General Sessions would do well to learn from his predecessor’s mistake. Sessions’ mandate that the judges decide cases “faster” and more “efficiently” ignores the fact that the immigration court judges are currently rendering decisions in a timely manner. However, immigration judges must also follow the constraints of due process, which means giving both sides an opportunity to present their case and then for the judge to fully consider the applicable law and issue a thoughtful decision. A system that evaluates immigration judge performance based on how fast they can complete cases will certainly undermine the quality and thoroughness of decisions. Current law and our legal system requires full and fair hearings, followed by a well-reasoned decision that is consistent with the facts and relevant law. An immigration judge should be evaluated based on quality not quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. As we have seen before, poor decisions will directly result in more appeals to the Board of Immigration Appeals and the Courts of Appeal, causing more delays and running contrary to the goals of the Attorney General.

An equally troubling consequence of the case completion requirement is the possibility of a judge’s decision being influenced by factors outside the facts of the case. For example, the court is asked for a continuance in many cases to await action or decision by the U.S. Citizenship and Immigration Services (USCIS) on pending applications. Such applications are “u” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to US citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of his concern about his completion numbers and keeping his job. That is not justice; it seems more like an assembly line. Similarly, in some cases a continuance may be necessary because of the need for additional evidence or because of a witness’s unavailability. But now, a judge will be hesitant to grant such a continuance if she is concerned about his completion numbers, salary, or job security.

Additionally, an arbitrary case completion number of 700 ignores the wide disparity of cases appearing before the immigration courts. Unrepresented cases at the border or cases in detention often are completed in expedited fashion where little or no relief is sought. However, in many of the interior courts, such as in Chicago where I was a judge, most applicants are represented, present multiple witnesses including experts, and submit sophisticated legal arguments requiring extended trial time. These interior courts complete far less merit cases than at the border, yet the decisions often involve more complex legal issues. To provide context, I’d guess that judges in the interior, working the same hours and pace as judges on the border, probably complete 400 or 500 cases per year. To average the nationwide completion rate completely ignores the wide disparity of decision complexity required in different parts of the country.

Finally, the new quotas are an affront to due process and our legal system. Immigration judges are required by law and the Constitution’s Fifth Amendment to exercise due process in all cases, considering all the facts of case. Judges currently do this and issue decisions in an expeditious manner as soon as possible; judges do not purposefully stall cases. Putting artificial pressure on judges to complete cases more quickly is wrong; Attorney General Sessions is essentially asking the judges to short cut or violate due process, by disregarding thoroughness, fairness, and litigants’ opportunity to be heard, and abandon current law-abiding procedures for case adjudication.

In short, I believe the administration’s plan to impose numeric quotas on immigration judges will not speed up “deportations” if this is their goal, and may result in unforeseen consequences that actual delay the fair hearing process that presently exists.

Judge Vinikoor joined the law firm of Minsky, McCormick & Hallagan, P.C., in 2017 after serving over 30 years as an Immigration Judge.

Judge Vinikoor was appointed as an Immigration Judge in January 1984. During his long tenure on the immigration bench, Judge Vinikoor has authored numerous precedent deciding cases covering topics such as crimes involving moral turpitude, aggravated felony offenses, frauds committed at time of entry and/or adjustment and claims to U.S. citizenship. Judge Vinikoor’s decisions helped define the age limitations for K-4 beneficiaries seeking adjustment of status, the use of Section 245(i) to waive inadmissibility, and the scope of numerous discretionary waivers. A number of published opinions have addressed Judge Vinikoor’s expert analysis in cases involving burden of proof, marriage fraud, and Section 216(c)(4) evidence. During the past 30 years Judge Vinikoor has heard evidence in asylum cases from around the world. His decisions have led to a better understanding of the scope and evidence needed to qualify as a “refugee” under the Immigration and Nationality Act. Upon his retirement from the bench, he was the second most senior Immigration Judge in the country.

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Prior to his retirement in 2017, my good friend and colleague Judge Bob Vinikoor was one of the most widely respected, indeed revered, U.S. Immigration Judges. Indeed, at the time of his retirement, he was #2 in seniority among all U.S. Immigration Judges.

He was widely known for his fairness, scholarship, kindness, practical wisdom, humor, and ability to “move” a docket while respecting everyone’s rights. In a rational judicial system, those in charge would be looking for a way to “clone” someone like Judge Vinikoor and use his knowledge and skills to teach and mentor younger judges, rather than letting him pass into retirement.

In the “Age of Trump & Sessions” — with a blatant effort underway to “dumb down” the U.S. Immigration Judiciary and reduce it to an assembly line operation — it’s highly unlikely that there will be more Judge Vinikoors. That’s a huge loss for everyone, but particularly for the cause of justice in America and for those who depend on the Immigration Court system to deliver potentially life saving Due Process and fairness!

PWS

04-12-18

POLITICO EXPOSES SHOCKING FRAUD, WASTE, & ABUSE IN SESSIONS’S U.S. IMMIGRATION COURTS — POLITICALLY DRIVEN “ADR” FUELS UNMANAGEABLE BACKLOGS WHILE DOJ TRIES TO FOB OFF BLAME ON HARD WORKING ATTORNEYS AND US IMMIGRATION JUDGES — DUE PROCESS MOCKED & DENIED — GOP-LED CONGRESS AWOL AS DOJ SQUANDERS TAXPAYER FUNDS & ASKS FOR MORE! — JUDGES FORCED TO LEAVE BACKLOGGED DOCKETS TO TWIDDLE THUMBS AND READ NEWSPAPERS AT BORDER — INCOMPETENT DOJ POLITICOS ALLOWED TO REARRANGE COURT DOCKETS WHILE LOCAL JUDGES IGNORED — WHEN WILL THIS ABUSE END! — Plus, I Take On Former Obama Official Leon Fresco For His Tone Deaf Dissing Of Vulnerable Migrants Seeking (But Not Finding) Justice In Trump’s America!

ADR = AIMLESS DOCKET RESHUFFLING

http://www.politico.com/magazine/story/2017/09/27/trump-deportations-immigration-backlog-215649

Meredith Hoffman reports for Politico:

“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.

As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.

But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.

“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”

Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.

In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well as take some pressure off the currently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.

According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.

“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.

Her three colleagues at the facility who had also been ordered there by the DOJ were no busier. One who had been sent to Otero previously told her the empty caseloads were normal.

“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”

***

On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”

The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.

But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centers as offering inadequate work for their visiting justices.

“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.

One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.

The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”

The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”

Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.

Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)

When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.

Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”

More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.

The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.

The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied that the deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year, and that more than 90 percent of cases by “surge” judges had led to deportation orders.

But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.

“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, is the administration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.

***

Not everyone thinks sending judges to the border is a bad idea.

“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.

Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”

The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”

Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”

But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”

Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.

The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.

“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.

But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation. “They’re basically giving amnesty ironically to the non-detained docket.”

“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”

U.S. IMMIGRATION JUDGES CAN BREATHE EASIER: Judge Richard “Dickie The P” Posner Retires — 7th Cir. Jurist Was Caustic, Unrelenting Critic Of U.S. Immigration Courts!

http://www.chicagotribune.com/news/local/breaking/ct-judge-richard-posner-retires-met-20170901-story.html

The Chicago Tribune reports:

“Judge Richard A. Posner, one of the nation’s leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago.

Posner, 78, is stepping down effective Saturday, according to a news release Friday afternoon from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is “proud to have promoted a pragmatic approach to judging.” He said he spent his career applying his view that “judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.”

Posner’s biting and often brilliant written opinions as well as his unrelenting questioning from the bench have made him an icon of the court for years.

Known as a conservative at the time of his appointment, Posner’s views skewed more libertarian through the years, and he often came down in favor of more liberal issues such as gay marriage and abortion rights.

Lawyers who regularly appeared before the 7th Circuit knew that when Posner was on a panel they had to be ready for a line of questioning that could come out of left field. The salty judge was known to abruptly cut off lawyers who he thought were off-point, often with a dismissive “No, no, no!” delivered in his trademark nasal tone.”

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

Read the full article at the link.

Here’s a classic Posner comment on the U.S. Immigration Courts from a 2016 case, Chavarria-Reyes v. Lynch:

“POSNER, Circuit Judge, dissenting. This case involves a typical botch by an immigration judge. No surprise: the Immigration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads.”

See my prior blog on Chavarria-Reyes:

http://immigrationcourtside.com/2017/01/02/the-u-s-immigration-courts-vision-is-all-about-best-practices-guaranteeing-fairness-and-due-process-7th-circuits-judge-posner-thinks-its-a-farce-blames-congressional-underfunding/

Judge Posner was always provocative, often entertaining, and eminently quotable. While I found some of his commentary on the Immigration Courts and the BIA, and particularly some of his harsh words about individual Immigration Judges, to be “over the top,” his blunt criticism of the failure to provide due process to migrants and his recognition that the DOJ and Congress shared the majority of the responsibility for screwing up the system was spot on.

He was always a “player,” and he will be missed even by those who disagreed with him. I look forward to a “Posner commentary” on the state of due process in the Immigration Courts in the Sessions regime.

PWS

09-03-17

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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

Gee, who needs training when things like this can get through the system?

PWS

07-13-17

UW Law Looking For Immigrant Justice Clinic Director!

http://jobs.hr.wisc.edu/cw/en-us/job/495278/immigrant-justice-clinic-director

Click the link for full details. Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city. Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.

While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!

And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!

Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.

PWS

06-09-17

Update On Singapore Asylum Grant — Grossman Law Reports That Amos Yee Remains Detained In Wisconsin Pending Possible DHS Appeal!

MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.

When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.

Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.

ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.

As the American Immigration Lawyers Association notes:

“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.

Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”

Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.

For further Media inquiries on this case please contact:

ICE – Chicago Field Office: 312-347-2168

Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975

The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org

Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos

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

Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.

If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.

Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.

PWS

03/29/17

US Immigration Judge Samuel Cole (CHI) Grants Asylum To Singapore Dissident

https://www.nytimes.com/aponline/2017/03/25/us/ap-us-singapore-us-teen-asylum-seeker-.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news

The AP reports in the NY Times:

“A blogger from Singapore who was jailed for his online posts blasting his government was granted asylum to remain in the United States, an immigration judge ruled.

Amos Yee, 18, has been detained by federal immigration authorities since December when he was taken into custody at Chicago’s O’Hare International Airport. Attorneys said he could be released from a Wisconsin detention center as early as Monday.

Judge Samuel Cole issued a 13-page decision Friday, more than two weeks after Yee’s closed-door hearing on the asylum application.

“Yee has met his burden of showing that he suffered past persecution on account of his political opinion and has a well-founded fear of future persecution in Singapore,” Cole wrote.

Yee left Singapore with the intention of seeking asylum in the U.S. after being jailed for several weeks in 2015 and 2016. He was accused of hurting the religious feelings of Muslims and Christians in the multiethnic city-state. Yee is an atheist.

Many of his blog and social media posts criticized Singapore’s leaders. He created controversy in 2015 as the city-state was mourning the death of its first prime minister and he posted an expletive-laden video about Prime Minister Lee Kuan Yew just after his death.

Such open criticism of political leaders is discouraged in Singapore. The case raised questions about free speech and censorship and has been closely watched abroad.

Cole said testimony during Yee’s hearing showed that while the Singapore government’s stated reason for punishing him involved religion, “its real purpose was to stifle Yee’s political speech.” He said Yee’s prison sentence was “unusually long and harsh” especially for his age.

Singapore’s government criticized the decision.”

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

Mr. Yee was successfully represented by Maryland immigration attorney Sandra Grossman of Grossman Law LLC.

As I have mentioned before in this blog, most fully litigated U.S. Immigration Court cases today, particularly those involving asylum or criminal law, involve exceptionally complex, and often sensitive, issues of law and fact which can’t be fairly resolved in a one to two hour time block. Yet, most of the Administration’s recent enforcement initiatives seem to assume that Immigration Court is an “assembly line” and that U.S. Immigration Judges are more or less “assembly line workers” who can be detailed to obscure locations on demand and perhaps required to work “night shifts” to keep the “deportation railroad running at full throttle.”

But, due process is not an assembly line operation. It usually takes time, expertise, careful scholarship, and detailed fact-finding for U.S. Immigration Judges to produce fair decisions that will pass muster upon judicial review in the Circuit Courts of Appeals. (I note that the Administration’s first, high-profile attempt to “ram” an immigration case — “Travel Ban 1.0” — through a Court of Appeals was spectacularly unsuccessful.)

These days, most individuals who are represented by competent counsel and reach the “Individual (Merits) Hearing” stage have at least some plausible defenses to removal. Indeed, a 2016 study by TRAC Immigration showed that more than half (57%) of the total dispositions in U.S. Immigration Court favored the individual. http://trac.syr.edu/immigration/reports/435/

And, this was during the Obama Administration which already was prioritizing so-called “serious criminals.” By expanding the “criminal alien” definition to include minor criminals and non-criminals, the Trump Administration will probably be taking on even more cases where it ultimately will fail to get a “final order of removal” unless concerted attempts are made to “game the system” to insure that individuals lose (for example, by denying individuals fair access to counsel or using prolonged detention in poor conditions as a device to persuade individuals to abandon their claims to remain in the US).

PWS

03/26/17

🇺🇸 Due Process Forever!

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Hon. “Sir Jeffrey” Chase reports:

🇺🇸Due Process Forever!

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Here’s the link to Joan’s super timely article in the Judges’ Journal. ABA membership is required to access it:

🇺🇸Due Process Forever!

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