Immigration Judge Training – Page 3 – immigrationcourtside.com

⚖️🤯👩🏽‍⚖️👨🏻‍⚖️ AS GARLAND’S BACKLOG HITS 3 MILLION, WAY PAST TIME TO CLEAN HOUSE, 🧹 BRING IN COMPETENT EXPERTS, 🧐 & START IMPLEMENTING THE “MPI PLAN” FOR BACKLOG REDUCTION & DUE PROCESS! — Empower “The Magnificent Seven” To Take The Field & Bring Order From Chaos!

As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

https://trac.syr.edu/reports/734

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf

Executive Summary

The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.

For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely

to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.

Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.

While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.

Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals

2 million

cases in the backlog

About 650

immigration judges nationwide

Less than 500

cases completed per judge in most recent years

1

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.

Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.

Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.

Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at

the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.

EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.

The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.

Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as

The rate at which asylum claims are denied varies widely, from

1% with one judge to

100%

with another in FY 2017-22

2

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).

Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.

One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.

Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.

This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:

Strengthen the immigration court system’s management and efficiency

► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.

1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).

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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.

► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.

► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.

► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.

► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it

► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.

Upgrade how the courts use technology

► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.

Increase access to legal representation

► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.

4

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.

► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.

Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

BOX 1
About the Rethinking U.S. Immigration Policy Project

This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.

The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.

To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.

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

Read the full report at the link.

Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).

It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.

Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)

Bring in these experts:

Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)

Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!

This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”

This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!

🇺🇸 Due Process Forever!

PWS

12-19-23

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Stephen Miller Cartoon — Stephen Miller & Count Olaf. Despite promises to the contrary, the Biden Administration still channels Stephen Miller in its approach to kids in court. And, now they are working with GOP nativists and wobbly Dems in Congress to make things even worse, for kids and other asylum seekers!
Evil Twins, Notorious Child Abusers

A new “white paper” investigation from UCLA Center for Immigration Law and Policy documents shocking abuses already being inflicted on children Immigration Court even as Congress and the Administration look for more ways to strip asylum seekers of legal rights and human dignity:

https://law.ucla.edu/sites/default/files/PDFs/Center_for_Immigration_Law_and_Policy/No_Fair_Day_Children_in_Immigration_Court_White_Paper.pdf

EXECUTIVE SUMMARY

This white paper provides a comprehensive assessment of the Biden

administration’s treatment of children facing removal in immigra-

tion court. While much attention has rightly been given to the Biden

administration’s border and asylum policy, less attention has been

paid to child-specific policies in immigration court. This matters

both because tens of thousands of removal orders have been issued

against children during the Biden administration, and because chil-

dren’s cases present unique legal issues—including most obviously

that children generally bear little, if any, legal responsibility for the

situations in which they find themselves.

We find that the Biden administration took important steps at the

outset to protect children in ways the prior administration did

not. The decision to exempt children from the border expulsion

policy known as Title 42 was particularly significant in this respect.

However, for children who were permitted to enter the system and

ordered to appear for proceedings in immigration court, the Biden

administration has largely continued the policies of previous admin-

istrations. Those policies have utterly failed to protect the rights of

children in court.

These failures are all the more striking because they have continued

even as the administration has signaled support for the principle

that children deserve legal representation in immigration court as

a matter of basic fairness. Department of Homeland Security Sec-

retary Mayorkas—the nation’s foremost immigration enforcement

official—has repeatedly stated that he does not believe children can

receive fair removal hearings without legal representation, even as

prosecutors under his purview have proceeded with thousands of

such hearings and obtained thousands of removal orders against

unrepresented children through those grossly unfair processes.

The administration’s policies toward children in immigration court

have far-reaching impacts. In the first five months of Fiscal Year 2022,

almost one third of all new cases in immigration court involved chil-

dren, including tens of thousands of children under the age of five.1

Some of these children are “unaccompanied” because they arrived

1 TRAC, One-Third of New Immigration Court Cases

Are Children; One in Eight Are 0-4 Years of Age

(Mar. 17, 2022), https://trac.syr.edu/immigration/

reports/681/.

NO FAIR DAY: THE BIDEN ADMINISTRATION’S TREATMENT OF CHILDREN IN IMMIGRATION COURT 3

alone, while others are in “consolidated proceedings” with their fami-

lies. The immigration system, and the Biden administration, has failed

both. Many of these children proceeded without counsel, and a huge

number of children have been ordered removed for failure to appear.

We explain why these two policies—the imposition of in absentia

removal orders against unrepresented children and the failure to

provide counsel—are unlawful, and we provide recommendations

for how the Biden administration can remedy this crisis.

. . . .

It should be obvious that immigration court proceedings are far too

complex for children to navigate without legal representation. As

Secretary Mayorkas acknowledged earlier this year, “a nine-year-old

child cannot navigate the immigration system.”44 Attorneys General

under the Obama administration made similar statements, as had

the government’s own expert in litigation challenging the failure to

provide counsel for children several years ago.45 Prior to that conces-

sion, one supervisory immigration judge was extensively ridiculed

for stating his view that he could teach three- and four-year-olds to

understand immigration law and represent themselves in immi-

gration court.46 Yet, despite the obvious absurdity of that view, the

Biden administration’s immigration courts—like the immigration

courts of all prior administrations—recognize no age below which

children cannot proceed without a lawyer in court.

. . . .

CONCLUSION

Despite taking some strong symbolic and practical steps in its early

days, the Biden administration has failed children in immigration

court under its watch. In the last three years, Immigration Judges

have issued removal orders against tens of thousands of children in

violation of basic due process principles. Though the administration

has not enforced most of those removal orders, nothing will stop a

future administration from doing so without ever providing those

children a fair day in court.

But there is time to reverse course. We urge the administration to

adopt the concrete recommendations laid out in this paper: prohibit

the issuance of in absentia removal orders against unrepresented

children; terminate the Dedicated Docket; and ensure legal represen-

tation for all children in removal proceedings. To do so would make

real the Biden administration’s promise of a fair and humane immi-

gration system for children.

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

Read the complete report at the above link.

This should be a fixable problem! Instead, Congress and the Administration are fixated on making things worse for children and other legal asylum seekers at the border. What’s happening in the Senate now is neither a “negotiation” nor does it have much to do with “national security.”

It’s mostly about bullying the most vulnerable while diverting attention from the failure of all three branches of Government to address human migration and human rights in an rational, lawful, and constructive manner.

Artificially inflating and manipulating “in absentia” order statistics has been a long-time practice of EOIR under Administrations of both parties. The DOJ and EOIR use their own unfair procedures to paint a false picture of individuals evading the system.

In reality, statistics show that the overwhelming majority of those able to secure representation and therefore understand the “system” want fair merits decisions on their asylum applications.

But, as many who, unlike Garland and his minions, have actually practiced in the dysfunctional Immigration Courts know, getting a timely merits hearing on meritorious, already-prepared cases can be “mission impossible” in a system wedded to “Aimless Docket Reshuffling” and lacking in dynamic due-process-focused expert leadership!

Additionally, “notice” problems at EOIR are endemic — now reaching the Supremes for the third time (after being blown out on the first two trips) in a “supreme dereliction of duty” by Garland’s DOJ. Haphazard notice procedures and endless delays are also major contributors to the abuse of children in Immigraton Court.

🇺🇸 Due Process Forever!

PWS

12-18-23

👏⚖️ TELLING IT LIKE IT IS! — Immigration Guru & Pundit Dan Kowalski Slams The Immorality & Intellectual Dishonesty Of The Viral “Border Debate” In Congress!

Dan writes on Substack:

Let’s Abandon Ukraine So We Can Be Mean To Mexicans, et al.

Or, How To Further Debase Congress

DAN KOWALSKI

DEC 6, 2023

U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?

Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”

Thanks for reading Dan’s Substack! Subscribe for free to receive new posts and support my work.

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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)

How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.

Stay tuned…

Thanks for reading Dan’s Substack! Subscribe for free to receive new posts and support my work.

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

Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.

The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!

Border Death — Casket makers expect a huge boon from the deadly “border negotiations” going on in the U.S. Congress. But, the bodies of many of the victims of U.S. cruelty and blatant trashing of human and legal rights of asylum seekers might never be located. Those about to be sacrificed for political ends have “no voice at the table.” This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.

Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.

🇺🇸 Due Process Forever!

PWS

12-08-23

☠️ DERELICTION OF DUTY! — 9TH CIRCUIT JUDGES RIP BIA’S TOXIC “DEPORT AT ANY COST” CULTURE — “The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.”

Kangaroos — Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you.

Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.

Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion.

On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.

The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:

FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:

When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).

Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).

The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.

The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.

Read the full opinion here:

9th Cir Absentia set aside

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

The full ugliness and dysfunction of EOIR and the DOJ are on display here:

Aimless Docket Reshuffling in action;
Defective notice;
Violation of statutory requirements;
Defective administration of justice;
Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
Stunningly poor trial judging (2X);
Horrible appellate judging;
Frivolous defense of an unjust decision by OIL.

This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!

A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.

In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯

Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!

🇺🇸 Due Process Forever!

PWS

12-07-23

🤯☠️🤮 BAD JUDGING TRIFECTA: BIA’s Poor Performance Tries The Patience Of The Ultra-Conservative 5th Circuit!

Three LemonsBy Auguste Renoir (1918} Public Realm — Three Lemons
By Auguste Renoir (1918}
Public Realm
The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-reversal-and-victory-at-ca5-argueta-hernandez-ii

On July 10, 2023, a Fifth Circuit panel dismissed Mr. Argueta-Hernandez’ petition for review for lack of jurisdiction, 73 F.4th 300.

On Dec. 5, 2023 the panel (Higginbotham, Graves, and Douglas) granted rehearing, granted the petition, vacated and remanded:

“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”

[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]

Alison Lo, Esquire

Jonathan Cooper, Esquire

Chuck Roth, Esquire

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

Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!

Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.

Here’s what the “coveted trifecta of bad judging” looks like:

The BIA:

1) misapplied prevailing case law,

2) disregarded crucial evidence, and

3) failed to adequately support its decisions!

My only question is: Did they manage to get the ”A#” right?

Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca: “A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.

Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.

In sharp contrast to the BIA’s intentional “butchering” of the “mixed motive” doctrine in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), Judge Higgenbotham correctly articulates the meaning of “at least one central reason.” See https://immigrationcourtside.com/2023/12/04/☠️🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

He states:

By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).

Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!

The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise.

The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.

Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law!

Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chase that EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!

AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!

The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!

🇺🇸 Due Process Forever!

PWS

12-06-23

🇺🇸⚖️🗽👩🏽‍⚖️ NDPA ALERT ‼️ — APPLY TO BE A U.S. IMMIGRATION JUDGE — POSITIONS AVAILABLE, LOCATIONS “NEGOTIABLE” — Help Fix Our Justice System “From The Ground Up!” — Apply By Friday, Dec. 15!

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

https://www.justice.gov/legal-careers/job/immigration-judge-2#

Immigration Judge

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Hiring Organization

Executive Office for Immigration Review (EOIR)

Hiring Office

Office of the Chief Immigration Judge

Job ID

DE-12215980-23-VG

Location:

5107 Leesburg Pike

Falls Church, VA 22041 – United States

Application Deadline:

Friday, December 15, 2023

About the Office

The agency is still considering referred applicants from the previous announcement posted September 25, 2023, under announcement number, IJ-12116877-23-VG. If you applied under that announcement and were referred for consideration, you need not reapply under this announcement.

This is an Excepted Service position. Upon completion of the required trial period, the position will be permanent. Additional positions may be filled from this announcement within 90 days of certificate issuance.

This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge. EOIR seeks highly-qualified individuals to join our team of expert professionals who serve as immigration adjudicators in this important Agency.

EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.

EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.

Job Description

Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.

Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations

Qualifications

In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:

Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the Federal, State or local level. Qualifying trial experience involves cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, a grand jury, or appropriate military authority. Relevant administrative experience includes cases in which a formal procedure was initiated by a governmental administrative body.

NOTE: Qualifying experience is calculated only after bar admission.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your assessment questionnaire answers, we will not allow credit for your response(s). Ensure that your resume contains your full name, address, phone number, email address, and employment information. Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed. In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.

Additional information

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

Additional positions may be filled from this announcement within 90 days of certificate issuance.

Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.

There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See the “Required Documents” section.)

Application Process

To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs: USAJOBS – Job AnnouncementLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. . Please read the announcement thoroughly. You must submit a complete application package by 11:59pm (EST) on 12/15/2023, the closing date of this announcement.

Salary

$149,644 – $195,000 per year

Number of Positions

Many vacancies (see below vacancy link for locations): Location Negotiable After Selection

Travel

50% or less – You may be expected to travel for this position.

Relocation Expenses

Not authorized

*         *         *

Department Policies

Equal Employment Opportunity: The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor. The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.

Reasonable Accommodations: This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

Outreach and Recruitment for Qualified Applicants with Disabilities: The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements. Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority. Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.

Suitability and Citizenship: It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment. Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/Links to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link.). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.

Veterans:  There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdfLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).

USAO Residency Requirement: Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof. See 28 U.S.C. 545 for district specific information.

*         *         *

This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.

Updated December 1, 2023

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

Yes, I’ve been highly critical of EOIR, particularly the BIA. But, to change the system for the better, we need the “best and brightest judges” at the “retail level” — the U.S. Immigration Courts!

So, in that spirit, let’s take a “deep dive” into the BIA’s latest misapplication of asylum law, Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023) looking to mine a “Hon. Sir Jeffrey Chase golden nugget” from disaster. See e.g., https://immigrationcourtside.com/2023/11/17/%E2%9A%96%EF%B8%8F-hon-sir-jeffrey-chase-mines-golden-nuggets-from-slurry-of-denial-varela-chavarria-v-garland-1st-cir/.%0A%0A

In the process of denying asylum to a family targeted by gangs in Mexico, the BIA says:

The Immigration Judge’s finding that the cartel was motived by a desire to control the respondents’ land rather than their family membership is a permissible view of the evidence and is not clearly erroneous.

See, e.g., my recent post for additional commentary on this decision: https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

This negative finding by the IJ was “permissible,” not “compelled.” That language admits that other fact-findings on the same evidence could also be “permissible.” Much depends on the individual Immigration Judge’s frame of reference and willingness to look for “reasons to protect” rather than defaulting to “reasons to reject.”

So, what if the IJ were able to see and understand asylum from the standpoint of the applicant, rather than defaulting to the EOIR “any reason to deny” approach? Fairer fact-findings below would require more careful review by the BIA. Rather than just being able to mindlessly affirm adverse findings below, the BIA would basically be legally bound to uphold more positive findings unless “clearly erroneous.”

Of course in their haste to deny some BIA panels are prone to violate the “clearly erroneous” standard to “get to no.” But, that increases the chances of Circuit reversal. See, e.g., Crespin Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (my case from Arlington).

Additionally, DHS can’t and doesn’t appeal every asylum grant, particularly when they are “fact bound.” I actually had ICE Assistant Chief Counsel say on the record in waiving appeal that while they respectfully disagreed with my fact-findings, they recognized that they were not “clearly erroneous” for purposes of appeal. (Other times they actually agreed after I had stated my detailed findings and analysis, sometimes actually repeating during closing arguments the basic analysis I would have reached on the record we had just made.)

Better judging below can actually cut off and discourage backlog building “let’s spin the bottle” appeals by DHS encouraged by the BIA’s systemic failure to consistently uphold the rights of asylum seekers and their “unduly restrictive” interpretations of asylum law!

Buried amongst the morass of poor administration and bad appellate judging at EOIR, many “true expert” IJs are making great decisions and saving lives on a daily basis. One of the “best kept secrets” at EOIR — often intentionally obscured by both EOIR and the media (not to mention GOP White Nationalist nativists) — is that as of this summer over half of all those who passed “credible fear” — 55% — received asylum grants if they were actually able to get to merits hearings at today’s backlogged EOIR! See, e.g., https://humanrightsfirst.org/wp-content/uploads/2023/08/Asylum-grant-rates-fact-sheet-August-2023.pdf.

That’s an impressive rate, given that the system is stacked against asylum applicants! It also highlights the total insanity of today’s discussions on the Hill of how to artificially heighten standards to bar asylum seekers and promote more arbitrary wrongful denials of life-saving protection. What’s needed is better judging and more realistic and humane policies, NOT more cruelty and misapplications of asylum law!

As I have pointed out along with others, asylum grant rates would be much higher with better judges at EOIR and better precedents from the BIA. Better guidance would mean more cases granted at the Asylum Office and Immigration Court levels and a more timely and efficient system that advances and promotes due process, rather than inhibiting it!

But, it can’t all be done “from the outside!” Better Immigration Judges — true asylum experts with “hands on” experience representing applicants before EOIR and the Asylum Office — are essential to rebuilding EOIR as a functional court system.

For example, one of the expert recommendations from the very recent Women’s Refugee Commission study of asylum reception, resettlement, and processing was that: “One pro se assistance goal is to incentivize immigration judges to take a closer look at pro se asylum cases.”

https://www.womensrefugeecommission.org/research-resources/opportunities-for-welcome-lessons-learned-for-supporting-people-seeking-asylum-in-chicago-denver-new-york-city-and-portland-maine/

But, this laudable goal presupposes Immigration Judges who are experts in asylum law and able to “work their way through” some of the inherent barriers to justice in pro se Immigration Court cases rather than submitting to the “artificial production pressures and any reason to deny culture” that still exists at much of EOIR. Sadly, not all current IJs have this ability. Moreover, the BIA has provided defective leadership and guidance. EOIR judicial training on asylum does not measure up to much of that readily available in the private/NGO sector. See, e.g., VIISTA Villanova.

Many practitioners who have contacted me here at “Courtside” lament that their lives and their client’s futures would be better if they only were appearing before Immigration Judges who actually understood asylum law from a protection standpoint. They are frustrated by having their fine presentations and great arguments “shrugged off” with “predetermined boiler plate denials” citing negative language from the BIA — often ignoring what actually happened or was proved at trials.

Instead of being destined to forever be frustrated by EOIR’s shortcomings, YOU now have a chance to “be that judge” — the one who understands asylum law, has seen the defects in EOIR decision-making, who doesn’t view denial as “preordained,” and will require both parties fairly to meet their burdens. (Ironically, there are many places where the asylum regulations still place the burden of proof on DHS, even if many IJs and BIA panels are unwilling to enforce them.)

So, get in those applications for EOIR judgeships! It’s a great way to show leadership by improving the system from the inside while saving lives in the process! Better judges for a better America — starting at the “retail level!”

🇺🇸 Due Process Forever!

PWS

12-05-23

⚖️🗽 PROUDLY JOINING NGOs & LAW PROFESSORS IN 1ST CIR. AMICUS BRIEF CHALLENGING BIA’S MISAPPLICATION OF “EQUITABLE TOLLING” WHERE FEDEX DELIVERED NOA 1-DAY LATE! — Diaz-Valdez v. Garland

Professor Mary Holper
Associate Clinical Professor
Director of the Immigration Clinic
Associate Dean for Experiential Learning
Boston College Law
PHOTO: BC Law

Here’s the brief expertly prepared for us by NDPA All-Star Mary Holper and her team of student attorneys at Boston College Legal Services LAB Immigration Clinic:

23-1576 Amicus Brief Diaz Valdez

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

As we argue, the BIA’s action here violated their own precedent in Matter of Morales-Morales, 28 I. & N. Dec. 714 (BIA 2023). As stated in our brief:

In Morales-Morales, the case in which the BIA first held that it could equitably toll a notice of appeal deadline, the BIA stated that the quintessential example of an extraordinary circumstance warranting equitable tolling is when “a party uses a guaranteed delivery service, and the service fails to fulfill its guarantee.” See Morales-Morales, 28 I. & N. Dec. at 717. When presented with exactly those facts, however—FedEx’s Priority Overnight service failed to deliver Ms. Diaz-Valdez’s notice of appeal on time, violating its guarantee—the BIA arbitrarily and capriciously refused to equitably toll the deadline.

One could well ask why Garland is spending Government time and resources defending the BIA’s erroneous and unjust actions. No wonder EOIR can’t help building more and more backlog — much of it through poor quality, anti-immigrant decision-making that causes unnecessary delays, confusion, gross inconsistencies, and contributes to the dreaded “Aimless Docket Reshuffling” — an endemic problem at EOIR!

Thanks again to Mary and her team for their outstanding help. Also, as pointed out in the intro to the brief, I joined in my individual capacity, NOT as a representative of the Round Table, Georgetown Law, or any other group or entity with which I am associated.

🇺🇸 Due Process Forever!

PWS

12-01-23

🏴‍☠️ BLACK DECEMBER! — DEMS READY TO SELL OUT ASYLUM SEEKERS’ LEGAL & HUMAN RIGHTS TO GET WAR FUNDING DEAL? — Experts Rip GOP’s End Asylum Proposal, Even As Some Dems Signal Willingness To Cave!

https://apple.news/AV6SKpJ3_Sr6s28WOna6z1A

Jennifer Habercorn and Burgess Everett report for Politico:

A growing number of Senate Democrats appear open to making it harder for migrants to seek asylum in order to secure Republican support for aiding Ukraine and Israel.

They are motivated not just by concern for America’s embattled allies. They also believe changes are needed to help a migration crisis that is growing more dire and to potentially dull the political sting of border politics in battleground states before the 2024 elections.

“Look, I think the border needs some attention. I am one that thinks it doesn’t hurt,” said Sen. Jon Tester (D-Mont.), one of the Senate’s most vulnerable Democrats in next year’s midterm election.

Tester said he’s eager to see if a bipartisan group of negotiators can come up with an agreement on a policy issue as elusive as immigration. While he refused to commit to supporting a deal until he sees its details, he didn’t rule out backing stronger border requirements. And he’s not alone.

“I am certainly okay with [border policy] being a part of a national security supplemental,” said Sen. Tammy Baldwin (D-Wis.), another Democrat facing reelection next year. On changes to asylum policy, she said: “I would like to see us make some bipartisan progress, which has eluded us for years. The system’s broken.”

. . . .

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

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

Meanwhile, the GOP’s proposal to essentially end asylum — going well beyond the unfair and unduly restrictive policies already imposed by the Administration — has been condemned in the strongest possible terms by human rights and immigration experts. For example, here’s what Professor Karen Musalo, Founder & Director of the Center For Gender & Refugee Studies at Hastings Law, and an internationally-renowned human rights expert, said yesterday:

CGRS Urges Senators to Reject GOP Push to End Asylum

Nov 28, 2023

As negotiations over President Biden’s supplemental funding request continue, the Center for Gender & Refugee Studies (CGRS) urges lawmakers to reject Republican-led proposals that would upend the U.S. asylum system and eviscerate life-saving protections for people fleeing persecution and torture. If enacted, they would erase our longstanding tradition of welcoming asylum seekers and lead to the wrongful return of refugees to countries where they face persecution or torture, in violation of international law.

“These radical proposals amount to a complete abandonment of the U.S. government’s legal and moral obligations to extend protection to refugees fleeing persecution,” Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS), said today. “In practice, they would result in the persecution, torture, and deaths of families, children, and adults seeking safe haven at our nation’s doorstep. It is utterly shameful that Republican lawmakers are attempting to exploit the budget negotiations process to advance an extremist, anti-immigrant and anti-refugee agenda. The lives of people seeking asylum are not political bargaining chips. We urge lawmakers to join Senator Padilla and other congressional leaders in rejecting these cynical proposals.”

https://cgrs.uclawsf.edu/news/cgrs-urges-senators-reject-gop-push-end-asylum

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

Read the complete Politico article at the first link above.

To me, expressions like “attention” and “bipartisan progress” used by Dem politicos in connection with the Southern border are “code words” for appeasing the GOP nativist right by agreeing to “more border militarization” and “abrogation of the human rights of refugees and asylees!”

I see little “attention” or “bipartisan progress” being discussed on measures that, unlike the GOP “end of asylum/uber enforcement” proposals, would actually address the humanitarian situation on the border (and elsewhere) in a constructive and positive manner:

More, better trained, expert Immigration Judges and Asylum Officers;
Organized resettlement assistance and expedited work authorization for asylum applicants;
Legal assistance for asylum seekers;
An independent Article I Immigration Court;
Revision of the refugee definition to more clearly cover forms of gender-based persecution;
Increased DHS funding for sophisticated undercover and anti-smuggling operations targeting smugglers and cartels;
Adjustment of status for long-term TPS holders.

These are the types effective measures that have long been recommended by experts, yet widely ignored or even directly contravened by those in power. The negative results of “enforcement only” and “extreme cruelty” at the border are obvious in today’s continuing humanitarian situation.

The idea that a forced migration emergency will be “solved” by more draconian enforcement, eradication of human rights, and elimination of due process, as touted by GOP nativists, is a preposterous! Yet, many Dems seem ready, even anxious, to throw asylum applicants and their advocates under the bus — once again!

Unhappily, Congress and the Biden Administration have paid scant attention to the views of experts and those actually involved in relieving the plight of asylum seekers at the border. The politicos continue to dehumanize and demean forced migrants while stubbornly treating a human rights emergency as a “law enforcement crisis” that can be solved with more cruelty and repression.

As experts like Karen Musalo continue to point out, experience shows us that more deterrence and harshness will only make things worse, squandering resources and attention that could more effectively be used to address and alleviate unnecessary human suffering and finally making our refugee and asylum systems function in a fair and efficient manner.

Yet, politicos are more interested in grandstanding, “victim shaming,” and finger pointing than in achieving success and harnessing the positive potential of forced migration for countries like ours fortunate enough to be “receivers” rather than “senders!”

Ending asylum will NOT stop refugees from coming — at least in the long run. Every Administration manipulates or misrepresents statistics to show immediate “deterrent” effect from their latest restrictionist gimmicks (some ruled illegal by Federal Courts). But such “bogus successes” are never durable!

As the current situation shows, decades of failed deterrence merely creates new flows, in different places, piles up more dead migrant bodies, and surrenders the control of border policies to smugglers and cartels. That, in turn, fuels calls by restrictionists and their enablers for harsher, crueler, and ever more expensive (and profitable to some) sanctions imposed on some of the world’s most vulnerable humans.

If asylum ends, America will find itself with a larger, less controllable reality of a growing underground population of extralegal migrants. Contrary to nativist alarmism, this population has remained largely stable recently.

But, that will change as the legal asylum system contracts. Right now, most asylum seekers either apply at ports of entry (often undergoing unreasonable and dangerous waits and struggling with the dysfunctional “CBP One App”) or voluntarily surrender to CBP shortly after entering between ports. The GOP and Dem “go alongs” are determined to change that so that those seeking refuge will have no choice but to be smuggled into the interior where they can become lost in the general population.

This, in turn, will fuel demands by GOP White Nationalists and their Dem enablers for even more expensive and ultimately ineffective border militarization. It will also turn DHS into an internal security police.

Unable to “ferret out” and remove the underground population — because, in fact, they look, act, and are in many cases indistinguishable from native-born Americans and often perform essential services — they will concentrate on harassing and spreading fear among minority populations in America. Also, Trump has also promised that if re-elected, he will abuse his Executive authority to punish his critics and political opponents. Further empowerment of DHS in the interior would be handy in this respect.

Underground populations are also more susceptible to exploitation — another unstated objective of GOP restrictionist policies. What’s better for employers than a disenfranchised workforce who can be fired and turned over to DHS if they demand fair wages or better treatment?

Senate Dems appear to be on the verge of doing precisely what Karen and other experts have repeatedly warned against: using the lives and rights of asylum seekers as a “political bargaining chip” to appease the GOP right and secure military funding for Israel and Ukraine. It’s exactly what happens when experts and those with “on the ground” experience dealing with forced migrants are “locked out of the room” where decisions are made!

While White Nationalist neo-fascists like Stephen Miller and his cronies have remained “at the heart” of GOP policy making on eradicating human rights and punishing asylum seekers, lifetime experts on human rights and asylum find themselves reduced to the role of “outside critics” and “kibitzers” as the Dem Administration and Senate Dems bumble along on the border and human rights. That’s a shame that will certainly diminish and threaten the future of American democracy! And, it’s hard to see how appeasing the GOP restrictionist right will help Dems in 2024!

🇺🇸 Due Process Forever!

PWS

11-29-23

⚖️ HON. “SIR JEFFREY” CHASE MINES GOLDEN NUGGETS FROM SLURRY OF DENIAL! — VARELA-CHAVARRIA v. GARLAND — 1st Cir.

Panning for Gold — Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment!
“The First Pan”
By by W. Sihmedtgen.
Public Realm

“Sir Jeffrey” writes:

In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.

Read the full decision here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1780P-01A.pdf

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

Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.

🇺🇸 Due Process Forever!

PWS

11-17-23

🇺🇸⚖️🗽👍 STUDY INDICATES THAT WITH UNDERSTANDING & ASSISTANCE, MOST APPLICANTS WOULD PASS “CREDIBLE FEAR” — Why Are Politicos Ignoring Most Cost-Effective Solutions?

https://nmpoliticalreport.com/2023/11/07/pilot-program-more-than-90-of-asylum-seekers-pass-credible-fear-interview-when-given-help/

Susan Dunlap reports for NM Political Report:

An immigrant advocacy center found that when their staff were able to provide legal representation or help to immigrants facing credible fear interviews, the immigrant outcomes improved considerably.

Las Americas Immigrant Advocacy Center, a nonprofit based in El Paso, released a report last week detailing challenges the organization’s staff found and recommendations for change and statistical data on individuals seeking asylum in the U.S. The nonprofit initiated a pilot project over eight weeks in the summer of 2023 in two New Mexico immigration detention facilities: The Torrance County Detention Facility and Otero County Processing Center along with the El Paso Processing Center. The project sought to provide participating asylum seekers legal representation or help in preparation prior to the migrant’s credible fear interview. They found that the participating asylum seekers had a 91.6 percent pass rate at the three facilities.

A credible fear interview is an important part of the immigration process for asylum seekers, advocates have said. Often, asylum seekers are placed into detention facilities where there is documented abuse before they are allowed a credible fear interview with an immigration judge. Advocates who work with asylum seekers have said that asylum seekers are often brought to a room to talk to the immigration judge over the phone. The conversation is not private and the asylum seeker is often not given time to prepare. Sometimes the asylum seeker is not provided a translator and not all asylum seekers speak Spanish or English. If the asylum seeker fails to convince an immigration judge of the danger they left behind, the asylum seeker is most likely to face deportation and are often returned to life threatening situations, advocates have told NM Political Report in the past.

. . . .

One recommendation to help solve the problem is for the creation of scholarship programs for community members with lived experience and building a community accreditation program that would offer community members with free training and job placement.

“This would also provide a cost-effective way of expanding legal services to meet demand, giving organizations like ours a more sustained means of providing quality legal services to a higher number of migrants,” the report states.

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

Read Susan’s complete article at the link.

Studies like this reflect a reality that experts have long recognized, but few politicos and media figures are willing to admit:

Many, probably the majority, of those arriving at the border have credible claims for asylum;
They won’t be “deterred” from coming by cruelty, punishment, negative, often racist, rhetoric, and ever more extreme, deadly, yet ultimately ineffective border militarization;
With competent representation and better adjudicators — those with demonstrated, recognized adylum expertise — at both USCIS and EOIR many more asylum claims can and should be granted in a timely manner;
Rather than more expensive, ineffective border militarization, harsh imprisonment (“New American Gulag”), and coming up with new immoral and illegal restrictions on asylum, the Federal Government should be investing in more rational and cost-effective measures such as:
- Training and approving more accredited representatives for arriving asylum seekers through programs like VIISTA Villanova;
- Assisting localities and NGOs with reception and resettlement services;
- Implementing better hiring practices and asylum training at the Asylum Office and EOIR;
- Granting more asylum cases in a timely manner at or near to the “initial encounter” level (something that the Administration empowered itself to do, then inexplicably “suspended” the program just when it was MOST needed);
- Developing better coordination, skills matching, and job training for those granted asylum;
- Investing in English Language Learning, vocational training, social work, and other integration and assimilation services in communities where refugees resettle (notably, this would also create good job opportunities — many at the “professional” level — for existing U.S. workers).

It’s past time to move beyond “open border myths” and come up with humane, productive, legal, and effective programs to deal with the realities of human migration at our border!

🇺🇸 Due Process Forever, and great appreciation to all our veterans, past, present, and future!🙏👍

PWS

11-11-23

⚖️👨🏻‍⚖️👩🏽‍⚖️ GARLAND APPOINTS 39 NEW IJS — GOV. ATTORNEYS PREDOMINATE!

Judge Merrick Garland — Attorney General Merrick B. Garland
Official White House Photo
Public Realm

Attorney General Merrick Garland announced the appointment of 39 new Immigration Judges to EOIR. In somewhat of a “return to the past,” attorneys with primarily government backgrounds and judges from non-immigration systems predominated.

My “quick and dirty” analysis came up with the following groupings:

NGOs = 4

Immigration Private Practice = 9

Retired IJs = 2

DHS/EOIR = 10

Other Gov. = 8

Other Judicial = 5

Other Private Practice = 1

Among the names that stand out for me personally:

Judge Florence Chamberlain, San Francisco Immigration Court — Previously Managing Director, Northern Division, Ciudad Juarez, Kids In Need of Defense (“KIND”)

Judge Kevin Chapman, Atlanta Immigration Court — Previously Retired Immigration Judge, Orlando Immigration Court, previously Acting General Counsel and Deputy General Counsel EOIR

Judge Allison Daw, Sacramento Immigration Court — Previously Retired Immigration Judge Los Angeles & San Francisco Immigration Courts and former Member of the Round Table

Judge Enrique Holguin, El Paso Immigration Court — Previously Managing Attorney, Diocesan Immigrant & Refugee Services of El Paso

Judge June K. Lee, Hyattsville Immigration Court — Previously Director, Immigrants’ Rights Legal Services Project at Legal Aid D.C.

Judge Dianna Michelle Martinez Soler, New York (Broadway) Immigration Court — Previously Legal Director at Central American Legal Assistance (“CALA”), Brooklyn, NY

Judge Elizabeth Kohler Maya, Baltimore Immigration Court — Previously Managing Partner, Bromberg, Kohler Maya & Petre LLC, who appeared before me at the “Legacy” Arlington Immigration Court

Judge Anam Rahman Petit, Annandale Immigration Court — Previously Partner, Calderon Seguin PLC, Fairfax, VA, who appeared before me at the “Legacy” Arlington Immigration Court

Judge Susana Reyes, Seattle Immigration Court — Previously long-time private immigration practitioner, Dallas TX

Judge Tyler “Tiger” Wood, Denver Immigration Court — Previously Assistant Chief Counsel for ICE in Denver and Arlington where he appeared extensively in my court

Bios of these and all of the other newly appointed judges are here:

https://www.justice.gov/d9/2023-11/notice_eoir_announces_39_new_immigration_judges_11072023.pdf

Congrats and good luck to all the new judges! Remember, there’s only one real job at EOIR: Guaranteeing fairness and due process for all!

🇺🇸 Due Process Forever!

PWS

11-07-23

⚔️🛡️⚖️🗽👩🏽‍⚖️ ROUND TABLE AMONG ORGS ENDORSING THE BIPARTISAN CHILDREN’S IMMIGRATION COURT BILL! — Rep. Hillary Scholten (D-MI) Among Co-Sponsors!

Cecelia M. Espenoza — Hon. Cecelia M.Espenoza
Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges
Source:
Denverdemocrats.org

“Sir Jeffrey” Chase reports:

Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.

The press release of Sen. Michael Bennet included this quote from Cecelia!

“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.

A link to the full press release is here:

https://www.bennet.senate.gov/public/index.cfm/press-releases?id=26F938C9-0426-41DA-8F25-1BF08FD8E4AE

And this accompanying list of sponsoring organizations includes the Round Table (at #28):

https://www.bennet.senate.gov/public/_cache/files/8/5/85527130-70b8-40ab-8324-4ecc466712c5/E717DE48CC2EA2E5166E595774B666E5.children-s-court-supportive-orgs.pdf

Feel free to amplify/share/distribute.

Thanks to all! – Jeff

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

Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎

Rep. Hillary Scholten (D-MI)
Credit: Ike Hayman
SOURCE: Wikipedia

Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:

“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”

🇺🇸 Due Process Forever!

PWS

11-4-23

⚖️🗽😎 CRAVATH CELEBRATES PRO BONO WEEK WITH A BIG “W” — Case Had Been Pending 5 Years Because Of Bad Decisions From BIA, IJ!

Wes Earnhardt, Esquire
Partner
Cravath, NYT Office
PHOTO Cravath

https://bit.ly/3M9E57w

On August 30, 2023, Judge Leo A. Finston of the Newark Immigration Court granted asylum to a Cravath pro bono client persecuted by gang members in El Salvador.

Cravath’s client overheard the murder of his neighbors by a Salvadoran gang and, fearing retaliation from the gang, subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He fled El Salvador and arrived at the Texas border in December 2017, turning himself in to United States immigration officials and requesting asylum. He was detained, and Human Rights First represented him before the Immigration Court in Newark, New Jersey.

In September 2018, Judge Finston denied the application for asylum, finding that, while the man was credible and had suffered PTSD from the events in El Salvador, “complaining witnesses against major Salvadoran gangs” were not a “particular social group” for purposes of asylum, and there was not sufficient probability that he would be tortured upon his return to El Salvador. In March 2019, the Board of Immigration Appeals (BIA) dismissed the initial appeal. Cravath became involved at this stage, briefing and arguing the appeal before the Third Circuit Court of Appeals.

On April 17, 2020, the Third Circuit issued a precedential opinion (see related news item here) granting the client’s petition for review, vacating the BIA’s removal order and remanding the case to the BIA for further proceedings. The Court held that “persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group” for purposes of asylum, and that the BIA erred in denying relief under the Convention Against Torture, finding that “it is clear to us, viewing the record as a whole, that [he] suffered torture”. The Court remanded the case to the BIA, and in December 2021, the BIA remanded the matter to the Newark Immigration Court for further proceedings.

By that time, Cravath’s client was living in hiding in El Salvador, and the Cravath team spent the next year and a half trying to secure his return for a new merits hearing, consistent with the Third Circuit’s opinion.

On July 20, 2023, at a Master Calendar Hearing before Judge Finston, the Cravath team argued the man had a meritorious case and constitutional due process and statutory rights to be present at his merits hearing, but the Department of Homeland Security took the position that it had no obligation to allow him to return. On August 30, 2023, the Cravath team appeared on the client’s behalf at a second Master Calendar Hearing, where Judge Finston found that, in light of the Third Circuit’s opinion and based on the record before him, it was clear the man qualified for asylum and no further proceedings were necessary.

The Cravath team was led by partner Wes Earnhardt and included associates Brian P. Golger and Ana C. Sewell.

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

Many congrats to Cravath!

I told the BIA that witnesses were a PSG more than a decade ago! They wouldn’t listen, but the Fourth Circuit did! See Crespin-Valladares v. Holder, 632 F. 3d 171 (4th Cir. 2011). When will they ever learn?

With proper guidance from a competent BIA, this case should have been a “slam dunk grant” five years ago. This also illustrates the absurdity of those who disingenuously claim that asylum applicants can receive due process without competent representation! It also shows the legal and moral bankruptcy of “expedited docket gimmicks” that attempt to rush cases to denial and deportation without a realistic chance to get representation and prepare!

The U.S. asylum system would work much more fairly and efficiently with a BIA of recognized asylum experts! They are out here! Why hasn’t Garland reformed and reconstituted the BIA to get the job done?

Lives and the future of American law are at stake here!

It’s a huge deal! Dems must “lose” the arrogant “it’s only immigration” attitude that has prevented Dem Administrations from doing the correct, courageous (and smart) thing on immigration, human rights, social justice, and civil rights! Migrants’ rights are human rights are civil rights are everyone’s rights!

Judge Finston did the right thing on remand from the Circuit. I’d like to believe that with better guidance from the BIA he would have done it five years ago. The human impact of the abject failure of the BIA to provide positive leadership on GRANTING asylum in recurring situations is an incomprehensible drag on our justice system at many levels.

Better judges for a better America! And, it starts at the “retail level” with EOIR!

🇺🇸 Due Process Forever!

PWS

11-2-23

🤯 EOIR WANTS YOUR HELP TO “CTA!” — After Unilaterally Foisting “Dedicated Dockets” On Public & Watching Them (Predictably) Fail, EOIR Now Seeks YOUR Help In Making Them Due Process Compliant! — YOUR Chance To Tell EOIR What YOU Think on THURSDAY, OCT. 26! — Check Out My “Four Point Plan” For Reducing EOIR Backlog While Promoting Due Process (The “Long-Ignored Sole Mission of EOIR”)!⚖️🗽😎

EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) — EOIR and their DOJ handlers imposed designed-to-fail “dedicated dockets” on the public over the objections of advocates. Now they need the same experts they “blew off” to help them save their “due-process-denying rocket dockets!”
By Pieter Bruegel The Elder
Public Domain

https://www.justice.gov/d9/2023-10/invite_lswg_national_stakeholder_mtg_for_dd_courts_10172023.pdf

INVITATION

U.S. Department of Justice

Executive Office for Immigration Review

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov

www.justice.gov/eoir @DOJ_EOIR

Oct. 17, 2023

EOIR to Host National Stakeholder Meeting Seeking to Increase

Pro Bono Representation for Immigration Courts with Dedicated Dockets

SUMMARY: The Executive Office for Immigration Review (EOIR) invites immigration law school clinical communities and pro bono organizations to attend a national stakeholder meeting for an open discussion on how to increase pro bono representation in immigration courts with Dedicated Dockets.

At this meeting, EOIR seeks input and recommendations on how the agency can better encourage and facilitate pro bono advocacy, either in person or remotely, at the following immigration courts with established Dedicated Dockets: Boston, Denver, Detroit, El Paso, Los Angeles – N. Los Angeles Street, Miami, New York – Broadway, New York – Varick, Newark, San Diego, San Francisco, and Seattle. See EOIR’s Policy Memorandum 21-23 for more details on this initiative.

EOIR continues to work to increase the representation rate and the number of practitioners available to represent noncitizens in immigration proceedings. Practitioners who volunteer their time to help those unable to afford counsel are a critical part of that effort.

Please join us for a targeted discussion with the goal of strengthening pro bono representation for the Dedicated Dockets.

DATE: TIME: LOCATION:

Oct. 26, 2023

1 p.m. – 2 p.m. Eastern Time

Live via Webex – Meeting Registration

All media inquiries should be directed to pao.eoir@usdoj.gov.

— EOIR —

Communications and Legislative Affairs Division

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

Studies show that EOIR’s “rocket dockets” (a/k/a “dedicated dockets”) have led to massive due process violations and illegal removals, many based on totally bogus “in absentia” hearings, exactly as experts and advocates had predicted, only to be arrogantly “blown off” by the “powers that be” at DOJ and EOIR. See, e.g., https://immigrationcourtside.com/2022/05/26/☠%EF%B8%8F👎🏽dems-catastrophic-due-process-failure-as-predicted-garlands-dedicated-dockets-are-asylum-free-zones/.

In reality, these ill-conceived and poorly-planned dockets have been “dedicated” to maximizing denials, minimizing due process, impeding effective representation, and developing an unfriendly atmosphere that will discourage asylum seekers from fully exercising their legal rights.

Some DOJ politicos and EOIR bureaucrats must belatedly be worrying about their “legacy,” future employability, or eventually being held accountable for plotting to deny due process to thousands of the most vulnerable humans! As usual, the immigration bureaucracy creates unnecessary problems, then leaves it to the NGO/advocacy community to bail them out!

It’s a deadly, counterproductive, wasteful, frustrating “downward cycle” that needs to stop! Why not “cut out the nonsense” by putting in charge those with the comprehensive knowledge, creative ideas, advanced skills, moral courage, and realistic foresight to solve these problems BEFORE they become self-created “crises?” Those needed leaders and judges are primarily OUTSIDE the USG right now. They need to be brought on board to solve the problems that are demonstrably beyond the ability, will, and skill set of the current immigration bureaucracy at DOJ and DHS!

Here’s my solution:

Replace EOIR senior managers with qualified experts who will work with the private bar and DHS, in ADVANCE, to schedule cases in a rational, efficient, manner that will comply with due process, fundamental fairness, and avoid “Aimless Docket Reshuffling” (“ADR”) — the bane of those practicing before EOIR and major driver of backlogs. (It’s also a significant deterrent to pro bono representation.) See, e.g.,.https://immigrationcourtside.com/2023/10/08/🤯-jason-the-asylumist-dzubow-explores-the-incredible-exploding-asylum-backlog-predictably-eoirs-aimless-docket-reshuffling/. It’s NOT rocket science!🚀
Only those Immigration Judges granting at or above the (already substantially suppressed) national average should be allowed to hear asylum cases.
Reassign those BIA Appellate Judges who are not recognized asylum experts, and replace them with qualified asylum experts committed to providing and enforcing some positive guidance and best practices for asylum adjudication.
Identify and promptly grant the hundreds of thousands of meritorious asylum cases now moldering in the EOIR backlog (many victims of EOIR’s ADR) so that these refugees can get on with their lives and contribute fully to American society and our economy.

Dems have the power to reform EOIR — a huge “Federal Court system” that they exclusively control! Why are they afraid to use that power “to promote justice and resist evil?”

In the meantime, please take advantage of this chance to “enlighten” EOIR bureaucrats about what it’s really like to attempt to provide pro bono representation on “dedicated dockets” while dealing with their ADR on already-prepared cases that could and should have been granted long ago. Hopefully, some members of the media will also tune in to get a dose of the challenges of trying to fight for justice in America’s worst and least-user-friendly “courts!”

🇺🇸 Due Process Forever!

PWS

10-19-23

⚖️👩🏻‍⚖️👨🏻‍⚖️ 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

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

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

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

Bring in these experts:

🇺🇸 Due Process Forever!

Related posts:

A new “white paper” investigation from UCLA Center for Immigration Law and Policy documents shocking abuses already being inflicted on children Immigration Court even as Congress and the Administration look for more ways to strip asylum seekers of legal rights and human dignity:

🇺🇸 Due Process Forever!

Related posts:

Dan writes on Substack:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Here’s the brief expertly prepared for us by NDPA All-Star Mary Holper and her team of student attorneys at Boston College Legal Services LAB Immigration Clinic:

🇺🇸 Due Process Forever!

Related posts:

Jennifer Habercorn and Burgess Everett report for Politico:

CGRS Urges Senators to Reject GOP Push to End Asylum

🇺🇸 Due Process Forever!

Related posts:

“Sir Jeffrey” writes:

🇺🇸 Due Process Forever!

Related posts:

Susan Dunlap reports for NM Political Report:

🇺🇸 Due Process Forever, and great appreciation to all our veterans, past, present, and future!🙏👍

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My “quick and dirty” analysis came up with the following groupings:

Bios of these and all of the other newly appointed judges are here:

🇺🇸 Due Process Forever!

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“Sir Jeffrey” Chase reports:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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