Judicial Selection – Page 10 – immigrationcourtside.com

⚖️🗽🧑🏻‍⚖️👩‍💼 MODELING EOIR’S POTENTIAL IN DENVER! — Judge Brea C. Burgie & Attorney Alexandra Katsiaficas Show How Good Judging & Effective Advocacy Can Combine For A Gender-Based Asylum Grant To Female Refugee From El Salvador!

Violence Against Women — “The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.”
PHOTO: Creative Commons 4.0

Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:

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Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.

This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?

While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.

Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.

Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!

I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!

Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.

So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit. See Bah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).

Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!

More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.

Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.

Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.

But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.

And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.

Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expert IJ handling a non-detained docket.

That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”

As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.

But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”

That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing for upcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.

🇺🇸 Due Process Forever!

PWS

02-06-23

🤮🤥 “DUH” OF THE DAY: “Billy the Bigot” Barr Is An Unethical, Right-Wing Hack Who Abused His Authority @ DOJ In Service Of Trump Over America! — Durham Investigation Was “Abusive, Partisan, and Unhinged!“

Barr Departs — Lowering The Barr by Randall Enos, Easton, CT
Republished By License

https://nymag.com/intelligencer/2023/01/the-durham-probe-was-barrs-witch-hunt.html

Johnathan Chait @ The Intelligencer:

There is an enduring pattern in American conservatism in which the right first develops a paranoid interpretation of the liberal Establishment, and then reverse engineers its own version of the monster it has imagined. Conservatives convinced themselves that the mainstream media and universities were mere propaganda organs, then created institutions like the Heritage Foundation and Fox News, warped reflections of their own overheated critique. The January 6 insurrection was, of course, in the mind of its participants, a “response” to the imagined vote-fraud conspiracy and its antifa/BLM shock troops.

John Durham’s investigation is a classic episode in this tradition. The American right first convinced itself that Robert Mueller and the deep state, using the cover of dispassionate professionalism, had launched a partisan witch hunt to smear Donald Trump. In response, it created a right-wing mirror image, as fervently partisan and unhinged as they believed their enemies to be.

The New York Times has a deeply reported narrative showing how Durham’s counter-investigation of the Russia probe, cooked up by William Barr at Donald Trump’s urging, was just as abusive, partisan, and unhinged as Trump’s defenders made Mueller out to be.

The purpose of special counsel is to wall off a politically sensitive investigation from the attorney general. But Durham, reports the Times, was working closely with Barr behind closed doors all along. The two Republicans dined and drank together, and came to share Barr’s Fox News–brained beliefs that Trump had been the victim of a conspiracy.

Rather than preventing Barr from meddling in a politicized investigation, this arrangement inverted that purpose and laundered Barr’s involvement through Durham’s putative independence. “At some point, some particularly ill-informed critic of the administration may try to paint Durham as a right-wing hack or Republican loyalist,” wrote National Review’s Jim Geraghty in a fawning profile, singling out the NAACP’s Sherrilyn Ifill for having the temerity to suggest Durham might have been compromised by serving Trump’s ends.

Durham and Barr kept failing to prove the deep-state conspiracy they imagined, but continued to press forward anyway. At one point they seized upon hacked Russian memos that intelligence analysts deemed obviously fake, instead treating them as a valuable intelligence trove, and tried to prove it out, even harassing one of the targets to obtain his emails (which contained nothing incriminating). It weirdly reflected the Trumpist accusation that Robert Mueller had been tricked into pursuing Russian disinformation.

As Durham kept failing to find support for the conspiracy he was pursuing, and which Barr kept floating in public, his deputies chafed at his obsession. Eventually, one of them resigned in protest when he brought charges against Michael Sussmann, a target of the right. As his former lieutenants expected, Durham’s case was defeated in court.

. . . .

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Read the complete article at the link.

Immigration advocates didn’t need a NY Times investigation to tell you that Barr was corrupt! Biased anti-immigrant, anti-asylum “AG precedents;” BIA “Appellate Judges” appointed for their unusually high asylum denial rates and known hostility to migrants and their attorneys; Immigration Judges appointed without expertise in immigration and human rights, overwhelmingly from the ranks of prosecutors; busting the IJ union (“NAIJ”) for speaking out against DOJ’s politicized mismanagement; issuing an EOIR “Fact Sheet” full of lies, misrepresentations, and myths; appointing politicized managers at EOIR without judicial or due process qualifications; taking ethically questionable litigating positions in Federal Court; the list of Barr’s abuses of authority on immigration and human rights goes on and on!

AG Merrick Garland has made a few ameliorative changes. Some of the worst precedents have been overruled; some unqualified political senior executives been removed or reassigned; over time, judicial selection has been shifted to a more balanced, merit-based system that has resulted in the appointment as Immigration Judges of some widely-recognized experts, with experience representing individuals, and a demonstrated commitment to due process for all; “numerical quotas” for IJs have been eliminated. (Curiously, however, Garland “honored” 17 “transition” Barr judicial selections made under badly flawed selection criteria!)

Yet, overall, EOIR remains largely the disaster zone that Barr left behind. Trump-era anti-asylum Appellate Judges continue to dominate the BIA; many Trump-era IJs still misapply basic immigration legal standards and operate “asylum free zones;” management is weak; training is inadequate; dockets are out of control; respondents and their attorneys are treated unprofessionally; quality control is largely nonexistent; wildly inconsistent “refugee roulette” asylum adjudication remains; an enforcement-skewed culture of “any reason to deny and deport” continues to infect EOIR at all levels; “numbers” are emphasized over quality and fairness; and the DOJ’s OIL often defends indefensible EOIR decisions in Federal Court on the apparent rationale that “it’s only migrants’ lives at stake, so who cares!”

Unhappily, the Biden Administration has barely “scratched the surface” of the badly needed and long overdue common sense reforms needed at EOIR and the DOJ to put the Sessions/Barr abuses behind us and move forward! Barr was a bad AG; but, his ghost continues to haunt the DOJ and those seeking equal justice for all!

🇺🇸 Due Process Forever!

PWS

01-30-23

🤮☠️ EGREGIOUS “ETHNOCENTRIC” JUDGING! — BIA IGNORES RECORD IN FABRICATED DENIAL OF GUATEMALAN CLAIM — 3RD CIR PUZZLED BY BIA’S CONDUCT: “At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety.“

Four Horsemen — BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR.
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-guatemala-law-facts-and-standard-of-review-saban-cach-v-atty-gen

Daniel M. Kowalski

25 Jan 2023

persecution

standard of review

Guatemala

asylum

CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.

Saban-Cach v. Atty. Gen.

“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”

[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]

Stephanie Norton
CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law
PHOTO: Seton Hall Law website

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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?

The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:

The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”

Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!

The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!

That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”

So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?

The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.

We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.

Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.

Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.

The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!

Also, Guatemalan applicants, along with others from the Northern Triangle, are “de facto disfavored” in EOIR’s asylum adjudications. That’s right “in line” with the bias against asylum seekers from the Northern Triangle exhibited by both the Trump and Biden Administrations. See, e.g., https://immigrationcourtside.com/2023/01/25/historical-perspective-from-yael-schacher-refugees-international-biden-administrations-bias-against-refugees-fleeing-the-northern-triangle-is-baked-into-the-prob/.

It’s also part of an ingrained institutional bias at EOIR against asylum seekers from the Northern Triangle and Latin America that Garland has failed effectively to address! See, e.g., https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/; https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/.

This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?

Star Chamber Justice — “Justice”
Star Chamber
Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”

Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”

Clown Court — “When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'”
PHOTO: Clown Civertan.jpg, Creative Commons License

🇺🇸Due Process Forever!

PWS

01-27-23

🤮☠️ THE COLLATERAL DAMAGE FROM GARLAND’S “AIMLESS DOCKET RESHUFFLING” (“ADR”) A/K/A “PLANNED CHAOS” IS DEVASTATING THE LEGAL PROFESSION! 🏴‍☠️ — Jason “The Asylumist” Dzubow Reports!

Immigration Lawyers Fleeing — Immigration lawyers – seen here fleeing the profession.

https://www.asylumist.com/2023/01/18/court-chaos-creates-collateral-consequences/

IMMIGRATION COURT

Court Chaos Creates Collateral Consequences

January 18, 2023

Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.

As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.

In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.

What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.

The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.

Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.

One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.

Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.

Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.

For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.

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“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡

In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”

The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!

A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?

🇺🇸Due Process Forever!

PWS

01-24-23

🤯 DEMS’ IMMIGRATION & RACIAL JUSTICE FAILURES BEGIN WITH REFUSAL TO BRING PRACTICAL EXPERTISE, INDEPENDENT PROFESSIONAL ADMINISTRATION, & MORE REAL JUDGES COMMITTED TO DUE PROCESS, HIGHEST QUALITY, & RULE OF LAW TO EOIR! — “[A] never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.“

https://prospect.org/justice/2023-01-19-immigration-case-backlog-title-42/

JAROD FACUNDO in The American Prospect:

. . . .

All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.

On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.

But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.

As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.

But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.

A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.

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

Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.

There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.

There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.

Gee whiz, a Harvard Law student figured it out! They have constructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. See https://wp.me/p8eeJm-8hE?

But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!

A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!

Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”

Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
- It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
- The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
- [T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
- [T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
- Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!

A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.

IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!

Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?

This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!

Meanwhile, the Biden Administration’s incredibly short-sighted and legally flawed “Miller Lite” asylum and border policies, of which Garland’s broken EOIR and unwillingness to stand up for human rights are a critical part, have “gone over like a lead balloon” with younger progressive Dems in Congress. See, e.g., https://link.vanityfair.com/click/30312106.23934/aHR0cHM6Ly93d3cudmFuaXR5ZmFpci5jb20vbmV3cy8yMDIzLzAxL2JpZGVucy1pbW1pZ3JhdGlvbi1wbGFuLXByb2dyZXNzaXZlcz91dG1fc291cmNlPW5sJnV0bV9icmFuZD12ZiZ1dG1fbWFpbGluZz1WRl9ISVZFXzAxMjEyMyZ1dG1fbWVkaXVtPWVtYWlsJmJ4aWQ9NWJkNjdjMzYzZjkyYTQxMjQ1ZGY0OWViJmNuZGlkPTQ4Mjk3NDQzJmhhc2hhPThhMWY0NzM3NDBiMjUzZDhmYTRjMjNiMDY2NzIyNzM3Jmhhc2hiPTI2Y2Q0MjUzNjU0NGUyNDc3NTFlYzc0MDk1ZDljZWRjNjdlNzdlZGImaGFzaGM9ZWI3Nzk4MDY4ODIwZjI5NDQwODFhMjAxODBhMGQzYTk0ZTAyNWI0YTkzZWE5YWU3N2M3YmJlMDAzNjdjNDZlZiZlc3JjPW5ld3NsZXR0ZXJvdmVybGF5Jm1iaWQ9Q1JNVllGMDkyMTIwJnNvdXJjZT1FRFRfVllGX05FV1NMRVRURVJfMF9ISVZFX1pa/5bd67c363f92a41245df49ebD1a544050.

These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?

Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!

🇺🇸 Due Process Forever!

PWS

02-22-23

⚖️”CONVENTIONAL WISDOM” SAYS YOU CAN’T WIN IMMIGRATION CASES IN THE 5TH CIR. — NDPA SUPERLITIGATOR RAED GONZALEZ SAYS “POPPYCOCK!” — He Buries Garland’s Backlog-Building Scofflaw BIA Again On Pereira Issue! — Will They Ever Learn? — Don’t Count On It!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-equitable-tolling-victory-lara-canales-v-garland

Dan Kowalski reports for LexisNexis Immigration Community:

Daniel M. Kowalski

19 Jan 2023

equitable tolling

Unpub. CA5 Equitable Tolling Victory: Lara Canales v. Garland

Lara Canales v. Garland

“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”

[Hats off once again to superlitigator Raed Gonzalez!]

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

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

Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!

THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!

The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!

In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!

I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:

“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”

How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!

After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.

Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”

Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record “indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6

Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.

But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”

While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.” (21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.

By providing only a negative precedent (they didn’t even bother to “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.

Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place. But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”

🇺🇸 Due Process Forever!

PWS

O1-21-23

📚 🦸🏽‍♀️🦸🏼‍♀️🦸🏻‍♂️NDPA “ACADEMIC HONOR ROLL!” — “Practical Scholars” Make Their Mark, & More! — The Contributions Of This Group Are Astounding! — Assembled & Originally Published By ImmProf Superstar 🌟 Professor Kit Johnson (Oklahoma Law)!

Professor Kit Johnson (the “Amazing KitJ @ ImmProf”)
Thomas P. Hester Presidential Professor, U of OK Law
Contributor, ImmigrationProf Blog

https://lawprofessors.typepad.com/immigration/2023/01/celebrating-immprof-achievements-in-2022-updated-.html

Wednesday, January 4, 2023

Celebrating Immprof Achievements in 2022 * UPDATED *

By Immigration Prof

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Rahuljakhmola, CC BY-SA 4.0, via Wikimedia Commons

I had a few highlights roll in after this was first posted, so here is an updated thread regarding the wonderful things that immigration law professors around the country had to celebrate in 2022.

New Jobs:

Jennifer Chacón joined the faculty at Stanford Law School.

Ming Hsu Chen joined the faculty at UC Hastings.

Eugenio Mollo, Jr. joined Toledo as a Clinical Assistant Professor of Law to launch and direct the school’s Immigrant Justice Clinic.

Aadhithi Padmanabhan (Maryland) started her first full-time job in academia as an Assistant Professor of Law directing the new Federal Appellate Immigration Clinic.

Carrie Rosenbaum joined Chapman as a Visiting Assistant Professor in Fall 2022.

Tania N. Valdez started her first tenure-track job as an Associate Professor of Law at The George Washington University Law School.

Promotions and Awards:

Lauren R. Aronson (Illinois) was promoted to Full Clinical Professor in August and granted Clinical Tenure.

Jason Cade (Georgia) was promoted to full professor. He also received the University of Georgia’s Engaged Scholar Award.

Jennifer Chacón (Stanford) received the Bruce Tyson Mitchell professorship.

Ming Hsu Chen (Hastings) was named the Harry & Lillian Hastings Research Chair and Founding Director of the Center for Race, Immigration, Citizenship, and Equality (RICE).

Shane Ellison (Duke) was promoted to Clinical Professor of Law (Teaching).

Kate Evans (Duke) was awarded clinical tenure in 2022.

Laila Hlass (Tulane) was promoted to Clinical Professor of Law. She was also awarded the 2022 NIPNLG Elisabeth S. “Lisa” Brodyaga Award.

Kevin Johnson (Davis) was named the first recipient of the Michael A. Olivas Award for Outstanding Leadership in Diversity and Mentoring in the Legal Academy. We look forward to the formal celebration in 2023.

Kit Johnson (Oklahoma) received the Thomas P. Hester Presidential Professorship.

Gabriela Kahrl (Maryland) was promoted from Associate Director to Co-Director of the Chacón Center for Immigrant Justice.

Jennifer Lee (Temple) was approved for tenure by a vote of the law school faculty — their first tenured clinician! We look forward to celebrating the formal approval from central campus in 2023.

Mauricio E. Noroña (Cardozo) became a VAP this year after a stint as a teaching fellow in the Cardozo Immigration Justice Clinic.

Shalini Bhargava Ray (Alabama) was approved for tenure by a vote of the law school faculty. We look forward to celebrating the formal approval from central campus in 2023.

Rachel Rosenbloom (Northeastern) is a fellow with Northeastern’s Center for Law, Equity and Race (CLEAR) while she is on sabbatical this year.

Scott Titshaw (Mercer) was promoted in 2022 from Associate Professor to Professor.

Administrative Gigs:

Hemanth Gundavaram (Northeastern) became Associate Dean of Experiential Education and Director of Clinical Programs; he continues to also serve as Director of the Immigrant Justice Clinic.

Anita Maddali (Northern Illinois) became the Associate Dean for Student Affairs in August 2022, stepping down from the Director of Clinics role she’d been in since 2011.

Rachel Rosenbloom (Northeastern) finished her term as Associate Dean for Experiential Education.

Other Exciting News:

Kate Evans (Duke) secured an additional $2.5 million grant to support Duke’s Immigrant Rights Clinic and the activities of the Duke Immigrant & Refugee Project.

Jill Family (Widener) became Chair of the ABA Administrative Law section.

Dina Haynes (New England) started a non-profit–Refugeeprojects.org–through which she has assisted many refugees, asylum seekers, pro bono attorneys and governments. She coordinates 800 attorneys assisting Afghans with evacuation, transit and Immigration status.

Laila Hlass (Tulane), Sarah Sherman-Stokes (Boston U), and Mary Yanik (Tulane) received a 2022 Research & Policy Grant from Boston University’s Center for Antiracist Research.

Geoffrey Hoffman (formerly Houston) became an immigration judge!

NEW BABIES (Squee!)

Joe Landau (Fordham) welcomed Max Fitzgerald Landau on 1/1/22 at 4:49am. 6 lbs, 2 oz of greatness.

Lauren R. Aronson (Illinois) welcomed Max Reuben Aronson-Orr on 12/15/2022 at 8:00pm. 8 lbs., 12 oz. of joy.

Congratulations to all!

-KitJ

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

“Super-kudos” to all! 🎖🏆😎 Thanks to Kit (the “Amazing KitJ @ ImmProf”) for putting this together and many congrats on her receipt of the Thomas P. Hester Presidential Professorship @ Oklahoma Law. Couldn’t have gone to a more deserving and consequential role model for the NDPA!

As one of my NDPA colleagues recently observed about the work of these NDPA “practical scholars:”

[T]he law schools today have incredible clinical programs that encourage and develop critical thinking and creative problem-solving; they send so many great new members of the NDPA out into the world.

Those familiar with what’s really happening in American justice these days also had this cogent observation:

EOIR does exactly the opposite; it kills critical or original thought, and rewards the bland “go along to get along” types. And the training is horrible, and actually refuses to include anyone from outside – even former IJs and Board Members. So the good people either quit, linger in the shadows, or are broken over time.

It’s very clear that a better Dem Attorney General would have “tapped in” to the practical problem solving skills, guts, integrity, and intellectual firepower of those on Kit’s honor roll and many others like them. I note with great pleasure and immense gratitude that Honor Roll member, Judge Geoffrey Hoffman, formerly of Houston Law, did “make the leap” to the Immigration Bench this year. But we need more, many more, like Judge Hoffman at all levels of EOIR to “rescue the sinking ship.”

The talent to change EOIR from a “CINO” to a “model court system” is out here! What’s sorely missing is dynamic leadership and consistent direction from the Biden Administration and Dems in Congress.

Immigrants have legal rights. Immigration isn’t going away in the future no matter how much Dems try to “wish it below the radar screen” and the GOP tries to “demonize it to death!”

The disgraceful failure of both parties to enforce legal rights of immigrants, stand up for human rights, and take realistic approaches to human migration is damaging our democracy and diminishing our national strength.

I advocate NDPA members “taking over” the Immigration Judiciary and fixing things from “the bottom up.” It won’t happen overnight; but waiting for real leadership from Dems or change from the “top” is like “waiting for Godot” — Not going to happen! See, e.g., https://wp.me/p8eeJm-8hm.

And, you’d be surprised at the useful insights and knowledge that can be gained from getting “inside EOIR” — an intentionally opaque, “closed” organization if there ever was one. That’s why courts often pay attention to what we “Former Immigration Judges and Board Members in the Round Table” say in our amicus briefs. We’re they only ones speaking truth about what really happens in Immigration Court “behind the bench.” All the “official versions” are “highly sanitized,” “manipulated,” or sometime just “unadulterated BS!”

Don’t leave “judging in America” to the Federalist Society, the Heritage Foundation, and inept Dem politicos who are too tone-deaf, insecure, and/or scared to do the right thing for YOUR future and the future of our nation.

Storm the tower! 🗼Take back justice at the retail level of our system! Better judges for a better America!

”Storm the Tower!” — EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸 Due Process Forever!

PWS

01-14-23

⚠️☠️🤡🤯👎🏼 “CINOs” (“Courts In Name Only”) — Harvard Law Review Takes On Garland’s Dystopian Immigration “Courts!” — “This Note cuts through that noise to provide a list of reforms that are simpler and less controversial [than Article I], yet still impactful — reforms that the sitting President could implement immediately.”

Alfred E. Neumann — Apparently, due process, fundamental fairness, and racial justice for all persons in the U.S., even those who happen to be non-citizens, weren’t part of A.G. Merrick Garland’s Harvard Law education.
PHOTO: Wikipedia Commons

From Dean Kevin Johnson @ ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/01/courts-in-name-only-repairing-americas-immigration-adjudication-system-by-the-harvard-law-review.html

Wednesday, January 11, 2023

Courts in Name Only: Repairing America’s Immigration Adjudication System

By the Harvard Law Review

By Immigration Prof

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The esteemed Harvard Law Review does not publish much immigration scholarship. A student note on the immigration court system may be of interest to blog readers. The system long has been criticized and, last year, a bill was introduced in Congress that would have brought reform.

Courts in Name Only: Repairing America’s Immigration Adjudication System
By the Harvard Law Review
Noncitizens in the United States face innumerable obstacles, many of which have now become well known. But even the supposedly neutral court system in which noncitizens’ cases are adjudicated currently functions as an executive tool for removal. This Note argues that the current structure of the immigration adjudication system — and the resulting executive control over it — subjects Immigration Judges to a variety of conditions that, taken together, bias the entire system towards removal. It then surveys existing proposals for structural reform and proposes numerous possible intermediate reforms.

KJ

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

Key recommendation from HLR article:

While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.

Good News for Harvard Law: Some bright, unidentified, Harvard Law students can cut through the BS and clearly state achievable reforms that could and should have been implemented by the Biden Administration without legislation.

Bad News for Harvard Law: Prominent graduate and Law Review “alum” AG Merrick Garland (‘77), once a step away from a seat on the Supremes, doesn’t “get” it and, in fact, his poor leadership and mis-management are key parts of the problems at EOIR that threaten the stability and credibility of the entire U.S. justice system.

Note to HLR: Follow your own advice to “cut through the noise” and reform yourself. Lose the “historical BS,” move into the 21st century, show some intellectual integrity, and set a better example by clearly identifying and crediting the authorship of this and other student articles, whether by individual(s) or a team. See, e,g., Authorship: Giving Credit Where It’s Due, https://www.apa.org/pubs/journals/resources/publishing-tips/giving-credit

It’s not “rocket science!” 🚀 It’s just “Legal & Intellectual Ethics 101” (not to mention standard professional courtesy). As a former judge, albeit only one in the CINOs, I gave little weight to quotations and citations to anonymous or unidentified sources.

🇺🇸Due Process Forever!

PWS

01-13-23

🇺🇸⚖️👨🏽‍⚖️👩🏽‍⚖️🗽 I Want YOU To Be A U.S. Immigration Judge! — “A Blueprint for America’s Better Federal Judiciary of the Future!“ — AILA D.C. CHAPTER — 01-11-23

Excerpts:

Now, those of you who read my blog immigrationcourtside.com or have heard me speak before, or both, know that I am an outspoken critic of the last four Administrations’ gross mismanagement and misdirection of our Immigration Courts. So, you might well ask why I am here recruiting YOU to become part of a court system that I have consistently lampooned and characterized as dysfunctional, FUBAR, and badly in need of long-overdue reforms.

A better question might be why AG Garland, VP Harris, Deputy AG Lisa Monaco, and Associate AG Vanita Gupta AREN’T here today actively recruiting you to apply to become Immigration Judges in their system. It’s a hugely important court, perhaps the largest in the Federal Government, that cries out for excellence, practical immigration scholarship, and badly needs a much more diverse, representative, and expert judiciary to achieve equal justice for all in America.

The short answer is because I CARE, and THEY DON’T! I have a vision of a model court system unswervingly dedicated to due process, fundamental fairness, great practical scholarship, best judicial practices, fantastic public service, and equal justice for all! THEY DON’T!

After two largely fruitiness and frustrating years of the Biden Administration’s bungling immigration and social justice mis-steps, it’s painfully clear that the needed management, personnel, operational, and expertise reforms needed at EOIR AREN’T going to come from above.

But, if you have been in Immigration Court and thought “Hey, there is a better, more informed, more efficient, more just way to run this railroad, why isn’t it happening,” THIS is YOUR chance to get on board and change the direction of EOIR and the millions of lives and livelihoods that depend on it! See that the next generations of dedicated immigration lawyers won’t face some of the unnecessary and counterproductive roadblocks and bad experiences that you have had to deal with in seeking justice for your clients before EOIR!

. . . .

Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.

So, if the law hasn’t changed substantially and country conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.

Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!

But, it doesn’t have to be this way! Recently, as I noted earlier, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.

The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”

. . . .

So, warriors of the NDPA, check out USA Jobs, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others, stand up for due process and fundamental fairness for all persons, and help save our democracy! Become better judges for a better America! If not YOU, then who?

You can watch my full webinar here:

AILA Webinars shared the following meeting recording with you.

Topic: How to become an EOIR judge

Date: Jan 11, 2023 11:42 AM Eastern Time (US and Canada)

Watch the Recording

Passcode: !Eidn9fx

For those who prefer to see it in writing, here’s a link to the complete speech:

AILA DC Becoming An Immigration Judge

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🇺🇸 Due Process Forever!

PWS

01-11-23

🤯 THE MUNDANE RIDICULOUSNESS OF GARLAND’S BROKEN COURTS — 19-Month-Late “Notice” Of Rescheduling? — “Just Another Day @ The Office” For Those Stuck In “EOIR-land!”

From my Linked-In feed today:

This is what we immigration lawyers have to deal with. A court notice for a case mailed 12/27/2022 telling me that the trial scheduled for 5/18/2021 has been cancelled.

“Late Notice”

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Notably the one thing this incredibly belated notice DOESN’T do: Provide an actual date and time for the “rescheduled” hearing! That will probably come only after an in absentia has been issued!

A great public research project: What are the backlog and fiscal consequences of DHS’s & EOIR’s joint intentional failure to comply with statutory notice requirements in Non-LPR cancellation cases? (a/k/a “The Pereira Debacle” — for which there has been absolutely NO official accountability).

NO MORE Attorneys General who lack actual experience representing individuals before EOIR!

🇺🇸 Due Process Forever!

PWS

01-09-23

🤯👎🏼WHY U.S. ASYLUM LAW IS FAILING UNDER BIDEN: “ASYLUM DENIERS CLUB” 🏴‍☠️ @ EOIR REMAINS MAJOR OBSTACLE TO DUE PROCESS, EFFICIENCY, & BEST PRACTICES UNDER GARLAND — 20% Of IJ’s Deny Asylum @ Rates Of 90% Or More! — Grant Rates “Range” From 0% To 99%, With Nationwide Average Denial Rate of 64% For Represented & 83% For Unrepresented Applicants!

Jason Dzubow, “The Asylumist” —

https://www.asylumist.com/2022/12/21/judging-the-judges-in-immigration-court/

To paraphrase Forrest Gump, Immigration Court is like a box of chocolates; you never know what you’re going to get. Also, some of the chocolate is poison.

For many applicants in Immigration Court, the most important factor in determining success is not the person’s story or the evidence or the quality of their lawyer. It is the judge who is randomly assigned to the case. According to TRAC Immigration, a non-profit that tracks asylum approval rates in Immigration Court, Immigration Judge (“IJ”) approval rates vary widely. For the period 2017 to 2022, asylum approval rates ranged from 0% (a judge in Houston) to 99% (a judge in San Francisco). Of the 635 IJs listed on the TRAC web page, 125 granted asylum in less than 10% of their cases. At the other extreme, nine IJs granted asylum more than 90% of the time.

Based solely on these numbers, there is a 20% chance (1 in 5) that your IJ denies at least 90% of the asylum cases that he adjudicates. That’s pretty frightening. But there is much more to the story, which we will explore below.

If Santa were an IJ, it wouldn’t matter whether you were naughty or nice – he would deport you Ho-Ho-Home.

First, the raw TRAC data does not distinguish between represented and unrepresented applicants, and having a lawyer generally makes a difference. Overall, represented applicants were denied asylum in 64% of cases. Unrepresented applicants were denied asylum more frequently–in 83% of cases. So if your IJ sees many cases where the applicant does not have an attorney, her overall denial rate is likely to be higher than if most of her cases have lawyers. To find this information, go to the TRAC website, click on the judge’s name, and scroll almost to the bottom of the IJ’s individual web page. You will see the percentage of cases before that IJ where the asylum applicant had an attorney. If you see that your judge presides over many unrepresented cases, it probably means that her overall denial rate is higher than would be expected if that IJ saw more cases where the applicant had a lawyer. What does this mean? Basically, if you are before such a judge, and you have an attorney, your odds of success are probably better than the judge’s overall denial rate would suggest. Conversely, if you do not have an attorney, your odds of receiving asylum are probably lower than the judge’s overall denial rate would suggest.

A second big factor that is relevant to each IJ’s denial rate is country of origin. People from certain countries are more likely to be denied, and so if your judge sees many people from those countries, his overall denial rate will be pushed up. You can see country-of-origin information if you click on your judge’s name and scroll to the very bottom of his web page. The countries that have had the highest denial rates over the past two decades are: El Salvador, Guatemala, Haiti, Honduras, and Mexico. And so if your IJ has many cases from these countries, his overall denial rate will likely be higher. Meaning that if you are not from one of these countries, your odds of winning asylum are probably better than what your judge’s overall denial rate would suggest.

A third important factor in examining IJ approval rates is the distinction between detained and non-detained asylum applicants. Certain judges have “detained dockets,” meaning that they rule on cases where the applicants are detained. Such people have a much more difficult time winning asylum: Some are barred from asylum due to criminal history or the one-year asylum bar. Others just have a more difficult time preparing their cases because they cannot easily gather evidence while detained. For these reasons, judges who decide many detained cases will generally have a lower overall asylum approval rate. Unfortunately, the TRAC data does not distinguish between detained and non-detained cases, and it is not always easy to know whether an IJ’s record includes detained cases (EOIR has a website that gives some details about each court, including whether that court is located at a detention facility).

While the TRAC data is not perfect (and there is no data on the newest IJs), it is the best source of information we have on Immigration Judge grant rates. Do keep in mind that the numbers only tell part of the story, and it is important to consider the above factors, as well as any other information you can gather from immigration lawyers and asylum applicants about your IJ.

What if you’ve done your research and have concluded that your judge is one of those who denies almost every case she sees? There are a few options.

One: You can go forward with the case and hope for the best. Sometimes a strong case can overcome a judge’s tendency to deny, and after all, even the worst IJs grant cases now and again (except for the 0% guy in Houston).

Two: You can ask for prosecutorial discretion and try to get the case dismissed. Except for cases where the noncitizen has a criminal or security issue, DHS (the prosecutor) is often willing to dismiss. Assuming you can get the case dismissed, you can then re-file for asylum at the Asylum Office (yes, this is a ridiculous waste of resources, but people are now doing it all the time). If you pursue this option, make sure to read the Special Instructions for the form I-589, as you will most likely be required to file your form at the Asylum Vetting Center.

Third: You can move. If you move to a new state (or at least a new jurisdiction within the same state), you can ask the IJ to move your case. Typically, you file a Motion to Change Venue. If the judge agrees, your case will be moved to a different court where you will hopefully land on a better IJ. Judges (and DHS attorneys) do not always agree to allow you change venue, especially if you are close to the date of your Individual Hearing or if you have previously changed venue in the past. And so if you plan to move your case, the sooner you make the move, the better.

Most Immigration Judges will do their best to evaluate the evidence and reach a fair decision. But some IJs seem intent on denying no matter what, and these judges are best avoided, if at all possible. Thanks to TRAC, you can get an idea about whether your IJ is one of these “deniers,” and this will help you decide how best to proceed in your case.

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So, at roughly the “halfway point” of the Biden Administration, one of the “best minds in the business,” Jason Dzubow, is expending his awesome brain-power advising lawyers on “strategies” for avoiding unfair “any reason to deny” Immigration Judges who inhabit about one in five Immigration Courtrooms under Garland! In other words, what steps you have to take to get a “fair hearing” on asylum from an agency whose sole function is SUPPOSED to be providing said “fair hearings” to everyone! See something wrong here?

One of these “strategies:” Request the ICE prosecutor’s agreement to dismissal of the (probably already long-pending) case in Immigration Court and “refile” before the Asylum Office (which also is hugely backlogged). Jason admits “that this is a ridiculous waste of resources, but people are now doing it all the time.”

Wonder why we have huge asylum backlogs? Despite what Trump, Biden, and nativist GOP politicos would have you believe, it has less do with those vainly seeking legal justice at our borders and LOTS to do with inept decisions, dumb actions (some of them downright malicious), and inactions by Congress and Administrations of both parties in the 21st Century.

Garland’s job was to fix this broken, unfair, wasteful, and astoundingly inefficient system. That isn’t “rocket science.” But, it requires dynamic, progressive, due process committed new leadership at EOIR and a major “shakeup” among Immigration Judges, at both the trial and appellate levels, so that those who are “looking for any reason to deny” either are get different jobs or start treating asylum seekers fairly and humanely by following Cardoza, Mogharrabi, Kasinga, and 8 CFR!

Garland hasn’t gotten the job done! And, the applicants and lawyers whose lives and livelihoods are tied up in his beyond dysfunctional system are the ones paying the price for his failure! Also taxpayers see their dollars and resources being poured down the drain at EOIR!

But, they aren’t Garland’s only victims! EOIR’s dysfunction and its failure to provide consistently correct, generous, positive guidance on how to efficiently grant asylum, particularly at the border, drives a whole other series of failures, illegalities, wastefulness, and mis-steps by the Administration.

Much of the nonsense and legally inappropriate gimmicks being rolled out by President Biden himself at the border this week is an insane attempt to avert the dysfunction at EOIR and USCIS by punishing not the inept politicos and bureaucrats responsible (nor political grandstanding GOP demagogues like Abbott & DeSantis), but the victims!

Improperly taking away the legal right to seek asylum at the border and creating more “jury-rigged” faux refugee programs by misusing parole are NOT the answer! Whatever their short-term impact is, in the long run they will fail just like all the other “deterrents” and “asylum work-arounds” unsuccessfully tried by Administrations of both parties over the past two decades.

Indeed, for those of us who have been around immigration law and policy for the last half-century, it bears an uncomfortable resemblance to the “ad hoc, highly politicized, unsatisfactory” approach to refugee situations that was superseded by enactment of the Refugee Act of 1980. How little we learn from the past!

What HASN’T been tried is the obvious: Recognizing and vigorously defending the right to asylum and building a fair and efficient adjudication system run and staffed by human rights experts under the existing authority provided by the Refugee Act of 1980, as amended. Why not build a fair, functional, generous legal asylum system under that Act that would encourage applicants to use it and reward those qualified for doing so with timely legal status (including, of course, authorization to work)?

Existing law already provides for “expedited removal,” without full Immigration Court hearings, of those who fail to establish to a trained USCIS Asylum Officer that they have a “credible fear” of persecution! Draconian as that measure is, and it undoubtedly has resulted in mistakes and injustices to asylum seekers, both the Trump and Biden Administrations have gone even further by wrongfully depriving those fleeing persecution of even this limited statutory right to present their claim to an Asylum Officer! To matters worse, both politicos and so-called “mainstream” media have “normalized” this disgraceful and harmful scofflaw behavior by ignoring the pretextual, racist roots of the Title 42 charade!

In the meantime, given the near total lack of leadership, competence, and courage from above to “do the right thing” and bring the “rule of law” to life, I do have a strong suggestion for NDPA members courageously “fighting in the trenches.” Apply for upcoming Immigration Judge vacancies at EOIR in massive numbers, over and over, until the roadblocks are removed and justice prevails!

As the relative proportion of “expert practical scholars” on the Immigration Bench grows and the “deniers’ club cohort” shrinks, change will emerge “from below” at EOIR, lives will be saved by the thousands, and justice will finally be realized in a system that now tries to resist and twist it! Functionality and “good government” will eventually win out over today’s inexcusable, and preventable, mess!

🇺🇸 Due Process Forever!

PWS

01-08-22

🤮👨‍⚖️OUR FAILING COURTS👎🏽: Dean Erwin Chemerinsky Slams Supremes For Scofflaw, Politicized, Biased Title 42 Travesty — The Supremes’ Misconduct & Incompetence In This Case Affecting Human Lives Is Totally Unacceptable! 🏴‍☠️ — Progressives Must Take The Fight To The Neo-Fascist Right For American’s Future! — “The Supreme Court’s order is senseless!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=792adcfa-2c82-4cca-953c-bf1dfeb1a070

On Title 42, the Supreme Court rules for a partisan agenda

COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.

By Erwin Chemerinsky

The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.

Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.

The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.

.. . .

In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.

Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.

On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.

The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.

. . . .

The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.

In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”

The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.

. . . .

The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.

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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!

The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around! Likely not in my lifetime!

But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!

Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!

This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!

🇺🇸Due Process Forever!

PWS

01-02-23

👍🏼 ⚖️🗽“CHANGE COMES FROM THE GROUND UP” — Expert Yale-Loehr Reinforces Schmidt & Friends! — EOIR Judgeships 👩🏻‍⚖️👨🏽‍⚖️ Are A Great Place To Start “Grass Roots Due Process Improvements!”

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/expert-change-happens-from-the-ground-up

Professor Stephen Yale-Loehr
Cornell Law

Expert: “Change Happens From The Ground Up”

Victor Reklaitis, MarketWatch, Dec. 22, 2022

“Federal Reserve chief Jerome Powell showed last week that he’s thinking about how recent lower immigration has factored into the ongoing U.S. labor shortage, but he said it’s not appropriate for the Fed to call for increased legal immigration to help alleviate the shortage. Could his remarks, careful as they were, somehow move the needle on immigration policy? His comments came as one new bipartisan proposal for immigration reform flopped in Congress, and some analysts say they aren’t optimistic about progress on immigration next year in a divided Washington. Still, others see Powell’s remarks having a small effect. … Powell’s answer could be seen as part of a slow process that eventually results in long-awaited fixes to the U.S. immigration system, according to Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. “To me, it’s like water dripping on a rock,” Yale-Loehr told MarketWatch in an interview. “A single drop of water, whether it’s from Fed Chairman Powell or somebody else, won’t make a difference by itself. But if enough drips of water from other people and other studies consistently show that immigration can help our labor shortages and improve our economy, then I hope that will move the needle so that Congress will seriously take up immigration reform in 2023.” … The Cornell professor also suggested that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. “A lot of change happens from the ground up, rather than the top down — if you think about civil-rights legislation in the 60s, the Environmental Protection Act of 1970, the antiwar efforts,” he said. “It was because people really protested the existing framework that they forced Congress to make changes in those areas. And so too, I think that if more Americans stood up and said, ‘We need immigration reform,’ I think that that would help persuade Congress to actually put pen to paper and make some significant changes.””

Compare with my recent post on the need and opportunity to get more NDPA experts on the immigration bench @ EOIR. https://immigrationcourtside.com/2022/12/21/%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a8%f0%9f%8f%bd%e2%9a%96%ef%b8%8f-five-attorneys-with-recent-experience-representing-individuals-in-immigration-court-among-garland/

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What better place to start forcing some long overdue changes than by getting more NDPA “practical scholar/experts” onto the EOIR bench where lives are on the line every minute of every working day? There are lots of ways to do justice at the “retail level” despite, or perhaps because of, the indifference of those in charge!

Folks, approximately a decade ago, the asylum grant rate at EOIR exceeded 50%! When grants of withholding (many the result of the 1-year-bar on asylum) and CAT were added in, almost 2/3 of asylum applicants who got a merits determination received some form of legal protection!

The vast majority of these cases were not appealed to the BIA. Slowly, but steadily, the EOIR system “at the retail level” was committing to expertise, sound scholarship, due process, fundamental fairness, faithful application of the generous legal principles established in Cardoza, Mogharrabi, and the regulatory presumption of future future persecution based on past persecution.

For years, those precedents and that regulation were resisted by many EOIR judges who continued, in practice, to apply the higher “more likely than not” standard rejected in Cardoza. But, following a series of savagely critical reversals of EOIR asylum denials by the Courts of Appeals the ground started to shift toward a more generous, proper, and correct interpretation of asylum law. Notably, those Court of Appeals “roastings” came after AG John Ashcroft “purged” the BIA in 2003 of appellate judges who spoke out for a better legal interpretation of asylum laws — one that faithfully followed Cardoza, Mogharrabi, and international standards!

As I used to tell my Georgetown Law students, a quarter century after the Supremes’ landmark decision in INS v. Cardoza-Fonseca, establishing the generous “well-founded fear” standard for asylum (reasonable likelihood = 10% chance) and the BIA’s implementation of that standard in Matter of Mogharrabi (asylum can be granted even where it is significantly unlikely that persecution will occur) the more generous standard was actually achieving “traction” at EOIR!

The law hasn’t changed very much since 2012. But, the progress toward a “Cardoza/Mogharrabi compliant” interpretation and application of asylum law halted and regressed substantially during the last part of the Obama Administration and during the Trump era.

What did change, for the worse, was the attitude of politicos, who have seen the Immigration Courts as captive “tools” to deter asylum seekers and “send negative messages” rather than insuring that they function as due-process-oriented, independent, subject matter expert, courts of law. The qualifications of those selected as Immigration Judges were “watered down” to favor high-volume government prosecutorial experience over demonstrated expertise in immigration and asylum laws and “hands on” experience representing individuals before EOIR.

Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.

So, if the law hasn’t changed substantially and conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.

Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!

But, it doesn’t have to be this way! Recently, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.

The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”

So, warriors ⚔️🛡of the NDPA, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others and help save our democracy! If not YOU, then who?👩🏻‍⚖️👨🏽‍⚖️⚖️🗽🇺🇸

🇺🇸 Due Process Forever!

PWS

12-23-22

👩🏻‍⚖️👨🏽‍⚖️ FIVE ATTORNEYS WITH RECENT EXPERIENCE REPRESENTING INDIVIDUALS IN IMMIGRATION COURT AMONG GARLAND’S ELEVEN NEW JUDICIAL APPOINTMENTS

In addition to these five, two other recently appointed Immigration Judges had private practice experience in immigration before becoming Government attorneys.

Round Table maven (and VERY proud new grandfather 😎) “Sir Jeffrey” S. Chase gave a special “shout out” to Judge Gioia M. Maiellano, now of the NY Federal Plaza Immigration Court.

Gioia M. Maiellano, Immigration Judge, New York – Federal Plaza Immigration Court

Gioia M. Maiellano was appointed as an Immigration Judge to begin hearing cases in December 2022. Judge Maiellano earned a Bachelor of Science in 1994 from Fordham University and a Juris Doctor in 1998 from Brooklyn Law School. From 2021 to 2022, she was a solo practitioner handling immigration cases. From 2017 to 2021, she served as an Administrative Law Judge with the Department of Finance, City of New York. From 2015 to 2016, she served as an asylum officer with U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). In 2015, prior to joining USCIS, she served as pro bono counsel for the Iraqi Refugee Assistance Project. From 2013 to 2015, she worked in private practice with the Law Office of Carmen DiAmore-Siah in Honolulu representing individuals before the immigration courts, the Board of Immigration Appeals, and USCIS. From 2003 to 2013, she served as an assistant chief counsel, U.S. Immigration and Customs Enforcement, DHS, in New York. In 2002, she worked with the Law Office of Amir Alishahi in New York. From 2000 to 2001, she served as a staff attorney with the European Roma Rights Center, in Budapest, Hungary. Prior to that, she served as a law clerk with the Office of the Prosecutor at the United Nations International Criminal Tribunal for the Former Yugoslavia in The Hague, The Netherlands. Judge Maiellano is a member of the New York State Bar.

Here are the bios of all the new judges:

https://www.justice.gov/eoir/page/file/1558986/download

Congrats to all!👏

As experts like my friends Judge Chase, Professor Debbie Anker, and LexisNexis Guru Dan Kowalski say, EOIR is an organization where positive change is more likely to “come from below than from above.” Unfortunately, that makes it a painfully slow process for those still suffering in the substandard conditions that Garland permits in his Immigration Courts.

Nevertheless, as more and more judges join the bench with recent experience actually working their way through this dysfunctional system to obtain justice for their clients, the resistance to mis-applying BIA and Circuit precedents favoring individuals will grow. Additionally, the legal standards will be correctly applied at the “first level,” unrealistic requirements on individuals and their lawyers will diminish, due process, fundamental fairness, and efficiency will advance, and the disgraceful anti-immigrant, anti-asylum, deny, deport, and deter “culture” at EOIR — actively promoted under Sessions and Barr — will diminish over time.

Moreover, when Article I eventually comes, a more diverse and better-qualified group of IJs likely will be initially “grandfathered.” That’s another reason why Garland’s “slow moving train” in improving the quality of EOIR Judges at all levels has been so totally frustrating.

Should have and could have happened over the past two years with better leadership and vision from Garland and his subordinates. But, given the dismal state of immigration institutions and policies over the past six years, I’ll treat anything that isn’t “bad news” as “good news!”

🇺🇸 Due Process Forever!

PWS

12-21-22

🤯TRAC: GARLAND’S IMMIGRATION COURT BACKLOG HITS 2 MILLION: More Judges, More Completions, Less Representation, Defective BIA, Mindless Mal-Administration = More Backlog!

Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer?
Michigan Stadium Photo by Andrew Horne, Creative Commons License

Here’s the latest from TRAC Immigration:

TRAC — EOIR Backlog 2 million

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Quick takes:

Even at this accelerated completion rate, on an annualized basis, I calculate that EOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.

Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022. https://wp.me/p8eeJm-7dT

I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.

Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!

Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!

Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!

🇺🇸 Due Process Forever!

PWS

12-16-22

Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:

🇺🇸 Due Process Forever!

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Johnathan Chait @ The Intelligencer:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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JAROD FACUNDO in The American Prospect:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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From Dean Kevin Johnson @ ImmigrationProf Blog:

Key recommendation from HLR article:

🇺🇸Due Process Forever!

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Excerpts:

You can watch my full webinar here:

For those who prefer to see it in writing, here’s a link to the complete speech:

🇺🇸 Due Process Forever!

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From my Linked-In feed today:

🇺🇸 Due Process Forever!

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Jason Dzubow, “The Asylumist” —

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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Here’s the latest from TRAC Immigration:

🇺🇸 Due Process Forever!

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