"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
We are looking to connect with immigration attorneys who have clients who crossed the border in recent years and have sought asylum in immigration court.
Specifically, we are looking to talk to asylum-seekers who have waited years/months for their cases to be heard in immigration court and are STILL waiting for a final decision.
Please comment or send me a message if you have a client who would be interested in speaking with us.
. . . To tell Hamed Aleaziz at The NYT the truth about the “under the radar” mess at EOIR that is systemically treating those with valid claims and sound defenses unfairly and threatens, with its unrelenting disorder and “deterrence bias,” to destabilize the entire U.S. Justice System! Public Domain
The (largely avoidable), backlog building, due-process-denying mess at Garland’s EOIR is one of the “unsung drivers” of bad immigration policies and myths about migrants, particularly asylum seekers.
To the extent that this glaring problem is covered at all by the so-called “mainstream media,” it’s usually superficial: reference to the 3.5 million case backlog, long delays, and the need for more Immigraton Judges and court personnel.
Here’s your chance to correct that “cosmetic coverage” by giving Hamed input on the overall unfairness, unnecessary inefficiencies, “user-unfriendliness,” and grotesque lack of overall legal expertise, consistency, and common sense in this broken system! It has improperly become a tool of “deterrence” in behalf of DHS Enforcement and has lost sight of its only proper role of insuring Constitutionally-required due process and fundamental fairness for individuals comingbefore the Immigration Courts!
“Gagged” Garland’s DOJ has taken extreme steps to stop Immigration Judges from publicly criticizing his dysfunctional Immigration Courts! PHOTO: Public Domain via Creative Commons
Joe Davidson, “Federal Insider,” from p. 2 of today’s WashPost (print edition):
. . . .
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union’s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department’s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements “without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.”
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that “Democrat and Republican administrations share the failure of the DOJ’s immigration court management,” saying “immigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.” Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of giving “judges a voice” that’s now silenced.
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges’ union, when she wrote “any bargaining agreement … that may have existed previously is not valid at present.”
On Nov. 2, 2020, the day before Trump, who waged war on federal unions, lost his reelection bid, the Federal Labor Relations Authority ruled that immigration judges are management employees precluded from union representation. That means, according to McNulty, they cannot speak out as union leaders because she considers their association to be a “group” and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office’s “inappropriate and misguided application of the agency speaking engagement policy.”
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.
McNulty’s action drew heated reaction from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s effort to silence immigration judges,” wrote Reps. Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), chairmen of the House Judiciary Committee and its immigration subcommittee, respectively. In a letter to the attorney general, Sen. Chuck Grassley (R-Iowa) said any effort “to silence immigration judges … is absolutely unacceptable.”
Grassley also noted that McNulty’s order “failed to include the anti-gag provision as required by law.”
That’s a key point in the Office of Special Counsel’s notice.
. . . .
[IFPTE President Matt] Biggs called the Justice Department office’s policy “an outrageous act of censure and an attack on freedom of the press and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.”
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Hon. Mimi Tsankov President, NAIJ — She “blew the whistle” on the continuing “bipartisan due process mess at EOIR” during recent Congressional testimony. Her “DOJ handlers” were not amused!
Read Joe’s complete column at the above link.
Both Parties, Congress, the Executive, and the Article III Courts share blame for the current untenable mess at EOIR, where Due Process, fundamental fairness, quality control, expertise, and practical efficiency are mere afterthoughts, at best! Although there is no sign that it will happen in the near future, the answer is clear and has been for decades: Congress must put aside partisan differences, stop “jockeying for advantage,” and create an independent Article I Immigration Court with a merit-based selection system for judges and professional court administration. Then, let the system work and the chips fall where they may!
You can’t “run” a court system like a “Vatican-style” bureaucratic agency! How many times does that have to be proved for Congress to finally act? Yes, it’s a “big deal!’ Probably the biggest, most widely ignored, most achievable, most important (millions of lives and futures are literally at stake here) piece of solving the “immigration puzzle!”
Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.
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This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!
I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.
In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.
🇺🇸 Due Process Forever!
PWS
04-07-24
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ADDENDUM FROM “SIR JEFFREY:”
“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.
Best, Jeff”
Thanks, Ray!
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
“On April 1, 2020, the Department of Justice (“the Department” or “DOJ”) published an interim final rule (“IFR”) with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals (“Board”) by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General. DATES: This rule is effective on [April 2, 2024].”
[Note: Applicants are encouraged to apply NOW on the theory that spillover from the applicant pool for the current openings here and here might be considered for the additional five slots.]
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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Ironically, particularly for those of us directly affected, the BIA had 23 authorized members a little over two decades ago!
Then, the infamous “Ashcroft purge” cut that number back to 12, citing bogus “efficiency grounds” to cover a scheme that ousted those BIA Judges who consistently stood up for due process, fundamental fairness, and migrants’ legal rights!
That sent the EOIR system into a tailspin which shook the Circuit Courts when almost immediately flooded with a tidal wave of deficient EOIR decisions, particularly relating to erroneous “adverse credibility rulings.”
The emasculated BIA, of course, rapidly proved too small to function in even a minimally competent manner. To “cover up” the adverse effects of Ashcroft’s political scheme, and to conceal the institutional failures of DOJ to protect individual rights of migrants, particularly those of color, Administrations of both parties resorted to the “gimmick” of quietly appointing “Temporary Board Members” from among BIA senior staff to keep the ship (sort of) afloat. Temporary Board Members were not allowed to vote at en banc conferences, had uncertain tenure, and had every incentive not to dissent or otherwise “rock the boat” if they wanted to compete for future “permanent” vacancies. (Although, arguably, the whole point of the Ashcroft purge was that all BIA judges were essentially “temporary” in the eyes of a GOP AG).
Over the decades following the purge, the DOJ gradually added permanent BIA Judge positions, without ever publicly acknowledging Ashcroft’s politicalscheme and its debilitating effects.
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW! Public Domain
United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.
March 29, 2024
RIKELMAN, Circuit Judge.
. . . .
We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding
– 15 –
against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).
The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was
– 16 –
the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.
The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the
– 17 –
government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.
For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5
. . . .
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Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏
Oh yeah, the BIA also screwed up the CAT analysis! 🤯
This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!
This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!
“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!
There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!”
“Singh experienced multiple physical attacks and death threats over an eight-month period, from November of 2014 to June of 2015. No reasonable factfinder would conclude that Singh did not experience serious harm rising to the level of persecution. … For all these reasons we find that the record compels a finding that Singh suffered harm rising to the level of persecution. … [T]he BIA did not independently analyze relocation and determine that the government met its burden. Rather, the BIA expressly adopted the IJ’s reasons for finding that internal relocation was safe and reasonable. In doing so, the BIA adopted the IJ’s flawed relocation analysis, which did not afford Singh the presumption of past persecution or shift the burden to the government to prove that Singh can safely and reasonably relocate within India. … In sum, because the BIA erred in its relocation analysis, we grant Singh’s petition to review his claim for asylum and remand to the BIA for consideration in light of Singh v. Whitaker, 914 F.3d 654. … For the reasons set forth above, we GRANT Singh’s petition in part and REMAND to the BIA to consider (1) whether Singh is eligible for asylum because he suffered past persecution on account of statutorily protected grounds by the government or individuals whom the government was unable or unwilling to control; (2) if so, whether the DHS rebutted the presumption of a well-founded fear of future persecution; and (3) whether Singh is entitled to withholding of removal.”
“The agency entirely overlooked evidence material to the hardship determination in this case: evidence regarding Mendez’s serious back injury and its implications for his ability to support his qualifying relatives through work in El Salvador. … The BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order.”
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
—Daniel M. KowalskiEditor-in-ChiefBender’s Immigration Bulletin (LexisNexis)
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What if a brain surgeon or a heart surgeon were routinely engaging in “surgical malpractice?” Wouldn’t it be a cause for grave concern?🤯
Almost every week, sometimes multiple times, the BIA mishandles the basics in potential “life or death” cases. Yet, Garland somehow shrugs it off! This not only adds to the “dehumanization” of migrants (their lives don’t count), but also badly skews the statistical profile that undergirds much of the misguided immigration (non) dialogue.
If the anti-immigrant, anti-asylum, huge “over-denial” problem at EOIR were addressed with better qualified judges and adjudicators, it would become apparent that many more, probably a majority, of those caught up in the dysfunction at EOIR and the Asylum Office are qualified to remain in the U.S. in some status. And, proper positive precedents would guide practitioners, ICE Counsel, Immigration Judges, and Asylum Officers to correct results without protracted litigation that eventually burdens the Courts of Appeals, causes avoidable remands, fuels “Aimless Docket Reshuffling,” and contributes mightily to the mushrooming EOIR backlog!
As a result, these cases could be prepared, prioritized, granted, and individuals could get on with their lives and maximize their human potential to help our nation — just as generations before them have done including the ancestors of almost all Americans! How soon some of us forget!
The real, largely self-created, “immigration crisis,” is NOT insufficient “deterrence, detention, and cruelty” at the border! It’s the grotesque failure of all three branches of Government to insist on a fair, timely, well-staffed, professionally-managed, due-process-compliant adjudication, review, and resettlement system for asylum seekers and other immigrants. It’s also the ongoing attempt to “cover up” and minimize our Government’s mistreatment of asylum seekers, particularly those asserting their legal right to apply at our borders and in the interior regardless of status!
The racially-driven “targeting” of asylum seekers at the border is a ruse designed to deflect attention from the realities of human migration, what drives it, and the failure of governments across the board to come to grips with them and to fulfill their legal responsibilities to treat all persons fairly, humanely, and in accordance with correct interpretations and applications of the law!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s additional commentary on Singh from my Round Table ⚖️⚔️ colleague “Sir Jeffrey” Chase:
The IJ was really determined to deny on this one. And I guess Vandyke had filled his quota of once in a lifetime for finding fault with the government, and thus had no choice but to dissent.
How would YOU like to face a system “determined to deny” with your life on the line? How would Garland like it?
Actually, under the generous “well-founded fear” standard applicable to asylum (Cardoza-Fonseca/Mogharrabi) and the authoritative guidance in the U.N. Handbook on adjudication, applicants like Singh who testify credibly are supposed to be given “the benefit of the doubt.” Garland has, quite improperly, like his immediate predecessors, allowed this key humanitarian legal principle to be mocked at EOIR! Instead, as cogently pointed out by “Sir Jeffrey,” here the IJ and the BIA actually went the “extra mile” to think of “any reason to deny” — even totally specious ones!
Also, half-baked, legally deficient “reasonably available internal relocation analysis”is a long-standing, chronic problem at EOIR, despite a regulation setting forth analytical factors that should be evaluated. Few, if any, such legitimate opportunities are “reasonably available” in most countries sending asylum applicants!
Moreover, once past persecution is established, the DHS has the burden of showing that there is a reasonably available internal relocation alternative, something that they almost never can prove by a preponderance of the evidence! Indeed, in my experience, the DHS almost never put in such evidence beyond rote citations to generalized language in DOS Country Reports!
The “judicial competency/bias” problems plaguing EOIR are large and well documented. Yet, Garland pretends like they don’t exist!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
The Executive Office for Immigration Review has announced an open vacancy for a Supervisory Immigration Judge (Assistant Chief Immigration Judge). This advertisement will close on April 4, 2024. If you are interested and want to learn more, click the following link to read about the position and apply: USAJOBS – Job Announcement.
Many thanks to my friend Kelly White, Associate Director- Learning & Development, Legal Access and Representation, Acacia Center for Justice for passing this along!
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
⚖️ BIA: OUTSDE, INSIDE: Garland Reportedly Will Tap “Practical Scholar” Professor Homero López, Jr., & Temp. Appellate Immigration Judge Joan B. Geller To Prior Vacancies, With One Judgeship Still “In Competition!”
By Paul Wickham Schmidt
Special to Courtside
March 19, 2024
Although there has been no official announcement from DOJ/EOIR, I have learned that Professor (and legal services provider) Homero López and Temporary Appellate Judge (and long-time BIA attorney) Joan Geller will be appointed to two of the three existing vacancies at the BIA. The BIA is the highest administrative tribunal in immigration law and exercises nationwide jurisdiction over the Immigration Courts with authority to issue binding precedents.
Professor López‘s appointment was announced by Loyola University Law (New Orleans) where he has been an Adjunct Professor of Law:
Adjunct Professor Promoted to Board of Immigration Appeals
Adjunct Law Professor Homero Lopez has been appointed to the Board of Immigration Appeals, the top administrative appellate agency to review immigration court decisions in the United States! Judge Lopez will start considering appeals on April 1st!
BIA Judge-designate Homero López, Jr. PHOTO: ILSA website
In addition to his adjunct professorship at Loyola, Judge-designate López most recently has been the Co-Founder & Legal Director of Immigration Services and Legal Advocacy (“ISLA”) in New Orleans, “a legal services organization that defends the rights of our immigrant communities and advocates for just and humane immigration policy.”
Here’s his bio from the ISLA website:
Homero is ISLA’s Legal Director. As the son of a migrant worker, Homero grew up moving around the country and living among immigrant communities his entire life. Before co-founding ISLA, Homero was the managing attorney at Catholic Charities-Archdiocese of New Orleans where he oversaw a legal team of 30 attorneys, accredited representatives, and legal assistants focusing on representing Unaccompanied Children and immigrant victims of crime. Before that, Homero was a staff, and later, supervising attorney at Catholic Charities of the Diocese of Baton Rouge where he conducted the Legal Orientation Program for detained immigrants at the LaSalle Detention Facility and primarily focused on detained cases. Homero is a graduate of Southern Methodist University in Dallas, Texas and Tulane University Law School in New Orleans, Louisiana.
López recently was featured by Dan Kowalski in LexisNexis for his successful litigation of a major due process/credibility victory in the Fifth Circuit, Nkenglefac v. Garland, 34 F.4th 422, 430 (2022), and for prevailing in the fee award litigation in the same case. See:
Judge-designate Geller has spent the bulk of her legal career as on the BIA staff and has also served as a Temporary Appellate Immigration Judge/Board Member. Here’s her “official bio” from the EOIR website:
Joan B. Geller was appointed as a temporary board member in January 2018. Ms. Geller, who has prior experience as a temporary board member, has over 14 years of experience as an attorney advisor at the Board. Prior to joining the Board, Ms. Geller served for seven years with the District of Columbia Court of Appeals, first as a staff attorney and later as a deputy staff counsel. Ms. Geller received her B.A. from the University of Wisconsin-Madison and her J.D.from Georgetown University Law Center. She is a member of the District of Columbia and Maryland Bars.
Significantly, from my standpoint, she graduated from the University of Wisconsin-Madison and Georgetown Law, two institutions with which I have long-time associations.While Geller’s BIA service began after my tenure there, sources tell me she was “held in high regard by the staff attorneys.” That’s important, given that the bulk of the opinion-drafting work at the BIA is done by the staff and the endemic quality control issues now plaguing this appellate body.
Hopefully, López and Geller will bring some much-needed due process focus, quality control, and practical progressive scholarship, leadership, and energy to a floundering, yet critically important, tribunal badly in need of the foregoing.
Indeed, López’s stellar work in Nkenglefac went right to the heart of the chronic due process and quality control problems of the BIA, particularly in life or death asylum cases, under Sessions, Barr, and now Garland: failure to follow precedent favorable to the respondent, “phantom finding of waiver,” lack of critical analysis, misrepresentation of the record, misuse of non-record materials, improper allocation of the burdens, and ignoring or minimizing voluminous testimony!In other words, a classic example of prejudgement and “any reason to deny” (even if not in the record) decision-making!
So totally miserable was EOIR’s and OIL’s performance in Nkenglefac that in a rare move the Fifth Circuit in subsequent litigation found them to be “not substantially justified at each stage of this litigation” and awarded costs and attorneys fees to the respondent! Having seen first-hand just how absurdly skewed and unfair the EOIR system has become in “life on the line” cases, López should be well-positioned to “just say no” to this type of appellate nonsense and inject a long-missing dose of reality, humanity, and real scholarship into this “ivory (actually glass) tower tribunal!”
Those of us who care about justice in America have ripped Garland’s BIA for sloppiness, anti-asylum culture, anti-immigrant attitudes, and failure to establish clear, practical, positive precedents facilitating the timely granting of asylum to the many qualified refugees now stuck in the largely USG-created morass at our Southern Border.See, e.g., https://immigrationcourtside.com/2024/03/18/⚖️-winograd-whomps-🥊-garlands-eoir-again-this-time-on-particularly-serious-crime-psc-annor-v-garland-fo/. For example, the failure to issue a precedent requiring presumptive grants of asylum to Afghan women, instead making them laboriously work their way through the system with potentially incorrect results, is an egregious, but not certainly not the only, example of the BIA’s abject failure to “get the job done for American justice.”
I also trust that López and Geller will be “throwbacks” to a time when senior leaders EOIR actually believed in the noble (now abandoned) “vision” of EOIR that I once had a role in crafting:“Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.”
Rather than making that vision a reality, disgracefully, under the last four Administrations, the EOIR motto appears to have devolved into “any reason to deny, good enough for government work, numbers over quality, institutional survival over individual justice, go along to get along, and don’t rock the boat!”
Finally, the appointment of Judge-designate López illustrates my constantly-made point that NDPA warriors can and must compete for EOIR judgeships, particularly at the BIA level, when they are advertised! This system needs practical, positive, due-process-focused, protection-oriented change, and it needs it now!Things are only going to improve if the pressure comes from both better-qualified judges on the “inside” and unrelenting litigation and media coverage from the “outside!”
And, of course, good luck to both these new Appellate Immigration Judges! May you never, ever forget that due process is the one and only mission of EOIR!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
Hi all: The Supreme Court just issued its opinion in Wilkinson v. Garland, in which our group filed an amicus brief. The Court held that the exceptional and extremely unusual hardship determination in cancellation B cases (involving non-LPRs) is a mixed question of fact and law, and is thus reviewable by circuit courts on appeal. The Court thus reversed the Third Circuit’s determination that it lacked jurisdiction.
The decision was 6-3. Sotomayor wrote the majority opinion; Jackson wrote a concurring opinion, and Roberts and Alito wrote dissenting opinions.
Our amicus brief argued:
In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual hardship” eligibility criteria for cancellation is a mixed question of law and fact.
This decision will have a major impact on cancellation B cases, as the Board’s hardship determinations will now be subject to wide circuit court review.
This case makes a huge difference! Circuit review will ratchet up the pressure on the BIA to cut the “any reason to deny” BS 💩 and start doing a quality review in every case! If not, given the number of cancellation cases in the system, there are going to be lots more Circuit remands that will jack the backlog even higher!
As put by one “Round Tabler,” this will “impact the scholarship and often times lack of analytical rigor by the Board, knowing that it is no longer completely insulated from review of its hardship determinations.” You betcha!
And don’t ever underestimate the adverse impact on due process and justice that occurs when, knowing that its decisions are “immune” from judicial review, the BIA is “pushed by the political powers that be” to cut corners, “crank the numbers,” and “keep the removal assembly line moving!” That’s why political control over the BIA’s decision-making has such an outsized adverse impact on justice for immigrants and undermines the key constitutional due process principle of “fair and impartial justice for all.”
Today, we’re celebrating the Fourth Circuit’s decision in Annor v. Garland. The court ruled that immigration judges must follow proper analytical steps in determining whether noncitizens have been convicted of a particularly serious crime (PSC).
This is an important decision because anyone convicted of a PSC is ineligible for asylum and withholding of removal, so PSC determinations have life-or-death consequences for immigrants facing persecution if they are deported to their home countries.
“Today, the Fourth Circuit spoke clearly: the immigration court system must treat PSC determinations with the care they deserve,” stated Immigration Impact Lab Senior Attorney Peter Alfredson, who worked on the amicus brief alongside Lab Deputy Program Director Samantha Hsieh.
CAIR Coalition submitted an amicus brief, also signed by RAICES, in support of Mr. Annor, who was represented by Ben Winograd of the Immigrant & Refugee Appellate Center, LLC.
Come on, man! How is this a competent adjudication by the BIA? It isn’t! So, why is it happening time and again under Garland?
“[T]he immigration court system must treat PSC determinations with the care they deserve!” Absolutely! But, it’s not happening in Garland’s “any reason to deny/defend garbage” DOJ! At least it’s not happening systemically under Garland!
Rather than correcting IJ errors and insisting that the legal rights of migrants be respected and protected, the BIA too often has been a big part of the problem! Sloppiness, lack of expertise, “any reason to deny,” “reject don’t protect” have all become hallmarks of Garland’s dysfunctional system!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
Contrary to GOP White Nationalist restrictionist blather, accepted by many spineless Dem politicos and the media, and enabled by Garland, this system should be identifying, screening, facilitating representation, expediting protection (not rejection), and arranging reception and resettlement, NOT engaging in more mindless “deterrence” and “uber enforcement.”
Garland’s abject failure to insist on due process and stand up for the legal and human rights of asylum seekers and other migrants has undermined our democracy! There is a huge “over-denial“ problem in our asylum adjudication system that skews the entire “debate!”
Our nation, our politicos, and our media are simply too gutless and morally vapid to admit that there are many, many more individuals arriving at our borders who should qualify for some sort of legal protection under a fair and legitimate screening and adjudication system!
Best comment, from Dan Kowalski @ LexisNexis: “Something is seriously wrong at DOJ when a seasoned IJ and BIA member make these kinds of mistakes, and when OIL attorneys defend such errors in court. Crimmigration should not be so hard that it takes a team of litigation superstars to achieve a just result!”
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC) — “He ‘gets’ it! So why don’t Garland and Dem leaders? Is Dan THAT much smarter than they are? Sure looks like it!”
You betcha, Dan! “Something is seriously wrong at DOJ” is an understatement! Dan, Hon. “Sir Jeffrey” Chase, and I are among the many who have been saying that since the Obama Administration. It’s painfully obvious that Garland isn’t the answer (nor is Mayorkas), and that NDPA superstars like Ben and others should be in charge of the human rights legal and adjudication bureaucracies at DOJ and DHS in a Dem Administration!
The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
This position is in the Board of Immigration Appeals, within the Executive Office for Immigration Review. The incumbent reports to a Deputy Chief Appellate Immigration Judge, who in turn reports to the Chief Appellate Immigration Judge.
Appellate Immigration Judges must apply immigration laws impartially, humanely, and equitably and ensure that all parties are treated with respect and dignity. They also must resolve cases expeditiously, in accordance with all applicable laws and regulations, and consistent with the Department’s priorities and policies.
Appellate Immigration Judges are commissioned to serve in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the U.S. Department of Homeland Security in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when appropriate. An Appellate Immigration Judge may concur or dissent based on their view of any given case. The majority of the Appellate Immigration Judges’ duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, and bond and detention.
The majority of an Appellate Immigration Judge’s duties will be dedicated to the appellate work, but an Appellate Immigration Judge must also be qualified, and may be called upon, to conduct trial level proceedings in the role of an immigration judge.
Appellate Immigration Judges make decisions that are final, subject to appeal to the Federal courts. In connection with these proceedings, Appellate Immigration Judges exercise certain discretionary powers as provided by law and are required to exercise independent judgment in reaching final decisions.
Employment is contingent upon the completion and satisfactory adjudication of a background investigation.
Selective Service Registration is required, as applicable.
Moving and Relocation Expense are not authorized.
You must have relevant experience (see “Qualifications” below.)
Qualifications must be met by the closing date of the announcement.
If selected, you must file a financial disclosure statement in accordance with the Ethics in Government Act of 1978.
You must receive your Federal salary by Direct Deposit (to a financial institution of their choosing).
Qualifications
In order to qualify for the Appellate Immigration Judge position, applicants must meet all of the following minimum qualifications:
Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)
AND
Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)
AND
Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level. Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority. Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body.
NOTE: Qualifying experience is calculated from the date of your first admission to the bar.
In addition, successful applicants will have a strong combination of experience demonstrating that they will perform at the level of competence, impartiality, and professionalism expected of an Appellate Immigration Judge. For more information about relevant experience and knowledge, please see the “How You Will Be Evaluated” section.
Additional information
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
Additional positions may be filled from this announcement within 90 days of certificate issuance.
Alternative work schedule options are available.
There is no formal rating system for applying veterans’ preference to Appellate Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Appellate Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See “Required Documents” section.)
Conditions of Employment: Only U.S. Citizens or Nationals are eligible for employment with the Executive Office for Immigration Review. Dual citizens of the U.S. and another country will be considered on a case-by-case basis. All DOJ applicants, both U.S. Citizens and non-citizens, whose job location is with the United States, must meet the residency requirement. For a total of three (not necessarily consecutive years) of the five years immediately prior to applying for a position, the applicant must have: 1) resided in the United States; 2) worked for the United States overseas in a Federal or military capacity; or 3) been a dependent of a Federal or military employee serving oversees.
As the Federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.
Additional Information: The COVID-19 vaccination requirement for Federal employees pursuant to Executive Order 14043 does not currently apply. Some jobs, however, may be subject to agency- or job-specific vaccination requirements, so please review the job announcement for details. To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified or vacated, depending on the course of ongoing litigation, the Federal government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Therefore, to the extent a Federal job announcement includes the requirement that applicants must be fully vaccinated against COVID-19 pursuant to Executive Order 14043, that requirement does not currently apply.
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Benefits
How You Will Be Evaluated
You will be evaluated for this job based on how well you meet the qualifications above.
You will be evaluated for this job based on how well you meet the qualifications above.
Applicants meeting the minimum qualifications stated above will be further evaluated to determine those who are best qualified. This determination will be based, in part, on the following Quality Ranking Factors (QRFs), which need to be addressed as part of the application package.
Ability to demonstrate the appropriate temperament to serve as a judge. Appellate Immigration Judges need to possess traits such as compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law. Additionally, individuals in this role are expected to exercise discretion, and articulate how that discretion is being exercised, in complex, sensitive, high-pressure and/or emotional situations. A strong candidate demonstrates excellent analytical, decision-making, and writing abilities.
Litigation or adjudication experience, preferably in a high volume judicial or administrative context. Appellate Immigration Judges often must balance a variety of skills that can include managing a high volume of cases, drafting decisions, and reviewing an administrative record at the appellate level. It is vital that a candidate is able to manage a high-volume docket under tight deadlines without compromising quality.
Experience conducting administrative hearings or adjudicating administrative cases. Appellate Immigration Judges are expected to decide difficult or complex issues, particularly those that impact people’s lives. Prior adjudication experience in other tribunals – Federal, state, local, military or other court systems – is ideal, however, adjudications experience may be drawn from non-courtroom settings. For candidates who have limited adjudications experience, significant litigation experience before EOIR or extensive litigation experience in settings comparable to an immigration court setting may be considered.
Experience handling complex legal issues. Immigration law often involves handling complex legal issues. This role requires being able to work through complicated fact patterns and issues, novel areas of the law, as well as learning, adapting to, and incorporating changes in the law.
Knowledge of immigration laws and procedures. In this role, depth and/or volume of immigration law experience is important. Candidates should have meaningful experience applying complex immigration law, which can include representing non-citizens or the Federal government in matters involving complex or diverse immigration laws, adjudicating immigration matters, legislative or administrative advocacy on immigration policy issues, academic or clinical experience, and other similar work that involves routine analysis and application of immigration law.
To apply for this position, you must provide a complete Application Package by 11:59 PM (ET) on 04/12/2024, the closing date of this announcement, which includes:
Your Resume documenting seven (7) years experience since being admitted to the bar.
A complete online Assessment Questionnaire.
Document(s)addressing the Quality Ranking Factors (QRFs) listed above.
A Writing Sample demonstrating your ability to author legal documents (10 pages, maximum; an excerpt of a longer document is acceptable).
Current or former Federal employees must provide copies of their most recent and their latest SF-50, Notification of Personnel Action.
Other Supporting Documents, if applicable:
Veterans’ Preference Documentation: Although the veterans’ preference point system does not apply to this position, we accept preference claims and adjudicate such claims per the documentation provided. Note: If claiming 5-point veterans’ preference, include a DD-214 or statement of service. If claiming 10-point veterans’ preference, include an SF-15 and documentation required by that form, VA or military letter dated 1991 or later, and DD-214.
Any other supporting documentation required for verification as described in the announcement.
Tips for your resume:
Ensure that your resume contains your full name, address, phone number, email address, and employment information.
Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed.
In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.
Tips for addressing QRFs:
Applicants should use narrative form to address each of the five (5) QRFs. They must be written in a separate document indicating the by-number of the specific QRF being addressed.
Successful applicants will address all of the QRFs. If you do not have the specific experience addressed in a QRF, we encourage you to write about a similar skill, ability, knowledge, or experience.
Applicants should be thorough in addressing each QRF. This includes:
Approximate number of cases or matters handled in a given period of time.
Applicant’s specific role (e.g., adjudicator, first chair, co-counsel, responsible for the written brief only, etc.).
Length of time involved in a given role (e.g., lead counsel in 20 immigration proceedings in 10 years).
Specific examples of the types of cases (asylum application, pleas, settlement, bench trial, jury trial, etc.).
The number of court and/or administrative appearances made in those cases.
The case dispositions (ruling on the merits, plea or similar resolution, settlement, trial, jury trial, etc.).
Failure to submit the documents listed above with your application package will result in your application package being removed from consideration.
If you are relying on your education to meet qualification requirements:
Failure to provide all of the required information as stated in this vacancy announcement may result in an ineligible rating or may affect the overall rating.
You must submit a complete application package by 11:59 PM (EST) on 04/12/2024, the closing date of the announcement.
To begin, click Apply Online to create a USAJOBS account or log in to your existing account. Follow the prompts to select your USAJOBS resume and/or other supporting documents and complete the occupational questionnaire.
Click the Submit My Answers button to submit your application package.
It is your responsibility to ensure your responses and appropriate documentation is submitted prior to the closing date.
To verify your application is complete, log into your USAJOBS account, select the Application Status link and then select the more information link for this position. The Details page will display the status of your application, the documentation received and processed, and any correspondence the agency has sent related to this application. Your uploaded documents may take several hours to clear the virus scan process.
To return to an incomplete application, log into your USAJOBS account and click Update Application in the vacancy announcement. You must re-select your resume and/or other documents from your USAJOBS account or your application will be incomplete.
If you are unable to apply online or need to fax a document you do not have in electronic form, view the following link for information regarding an Alternate Application.
We will evaluate the qualifications and eligibility of all applicants, and then assess those who meet the minimum qualifications. All candidates who meet all the minimum requirements will be referred to the hiring official for further consideration. We will notify you of the final outcome after all of these steps have been completed.
Fair & Transparent
The Federal hiring process is set up to be fair and transparent. Please read the following guidance.
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Learn more about
Executive Office for Immigration Review
If you are interested in a rewarding and challenging career, this is the position for you!
The Executive Office for Immigration Review seeks highly-qualified individuals to join our team of expert professionals in becoming a part of our challenging and rewarding Agency. The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three adjudicatory components: The Office of the Chief Immigration Judge, which is responsible for managing the Immigration Courts where Immigration Judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of these Immigration Judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.
Learn more about what it’s like to work at Executive Office for Immigration Review, what the agency does, and about the types of careers this agency offers.
Yes, EOIR is a mess! But, it’s not going to get any better without better judges, particularly at the BIA which sets precedents and should (even if it now doesn’t) maintain nationwide consistency among Immigration Judges and articulate and implement “best judicial practices.”
Quite disappointingly and outrageously, the Biden Administration and A.G. Garland have failed to “clean house” and bring long overdue due process and judicial reforms to EOIR. So, the NDPA will have to go about it “the old-fashioned way:” one judicial vacancy at a time!
What if we had a BIA that:
Believed due process and fundamental fairness are “job one;”
Insured correctness and quality over “generating numbers;”
Institutionalized protection, not rote rejection, of asylum seekers;
Built on past precedents for properly generous treatment of asylum seekers like INS v. Cardoza-Fonseca, Matter of Mogharrabi, and Matter of Kasinga, rather than ignoring, or looking for artificial ways to limit them;
Issued precedents insuring early identification and consistent granting of many current and repetitive asylum applications;
Looked for ways to simplify, rather than overcomplicate and obfuscate, legal guidance;
Had “zero tolerance” for anti-immigrant, anti-asylum, racial, gender, and other biases among Immigration Judges (e.g., no more “asylum free zones”);
Refused to allow the Immigraton Court system to be misused and abused as a “deterrent” or “an adjunct of DHS Enforcement;”
Developed and enforced “best judicial practices;”
Prioritized facilitating pro bono representation as a key element of due process;
Aspired to make the “former vision of EOIR” — “through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all” — a reality, rather than a cruel hoax!
Of course, one judge can’t do it all! But, there are plenty of great judges in the current EOIR system, at both levels, who need reenforcement and reaffirmation! Rebuilding the EOIR system so that it is a real, due-process-oriented, subject-matter-expert court that insures justice — rather than institutionalizing injustice — has to start somewhere! Fixing EOIR would also help save the entire faltering Federal Judicial system.
If the NDPA doesn’t do it, who will? Certainly not Biden, Harris, Garland or their minions— or at to least not without being pushed from within and dragged kicking and screaming from without.
Waiting for Godot (a/k/a Merrick Garland) to fix EOIR isn’t going to cut it! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011So, don’t “wait for Godot” to fix this broken system! Clue: He’s not coming! Get those applications in now!
Better judges for a better America! Sooner, rather than later!
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
“This court grants a petition for review of an agency denial of asylum, withholding of removal, and CAT relief only under the most extraordinary circumstances. See Gutierrez-Alm, 62 F.4th at 1194; Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This is one of those rare instances. For the reasons discussed above, the agency’su adverse credibility determination is amply supported by substantial evidence. But the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her testimony, and the BIA made clear factual errors when it reviewed those documents. Because the agency’s decision therefore “cannot be sustained upon its reasoning,” this case must be remanded for the IJ or BIA to reconsider its decision. De Leon, 51 F.4th at 1008 (internal quotation marks omitted). On remand, the agency must reexamine the three declarations and medical document discussed in section III(b) to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal. This court takes no position on whether those documents provide such proof or whether Kalulu merits any of the relief for which she applied.”
Dissent: “The majority ignores our precedent and instead concludes that the agency would have reached the same adverse credibility determination in the absence of these unsupported findings. That approach contravenes the REAL ID Act, binding circuit precedent, and fundamental principles of administrative law. I respectfully dissent.”
Many congrats to Amalia, Judah, and their NDPA team!
As my friend Dan often says about EOIR, “you can’t make this stuff up!”🤯
Well, the panel judges all agree that the BIA is wrong! It’s just a question of HOW wrong.
Note Van Dyke is a Trump appointee, and one of the most far-right judges on the bench. Murphy is a Bush II appointee. Sanchez (concur/dissent) is a Biden appointee.
The BIA has to have worked overtime to do such a miserable job that even Van Dyke couldn’t paper it over, although he took a stab at it!
The majority decision is basically a restatement of the 4th Circuit’s pre-REAL ID precedent Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). That case materially affected practices, changed results, and saved lives during my tenure at the “Legacy”Arlington Immigration Court!
So, it’s not that requiring that testimony be evaluated along with independent, non-testimonial evidence is something “new” or “rocket science!”🚀 Heck, it’s even incorporated in the REAL ID Act. This is “Immigration 101!” Yet, theBIA came up woefully short while Garland ignores fundamental flaws in his judicial system.
It’s well worth looking at a bit more of Judge Gabriel Sanchez’s vigorous separate opinion:
Petitioner Milly Kalulu, a native of Zambia, alleges she
was persecuted because she is a lesbian in a country that
criminalizes same-sex relationships. When her relationship
with a woman was discovered by her girlfriend’s brothers,
she was beaten, whipped, injected with an unknown
substance, stabbed in the chest, doused with gasoline, and
threatened with death over several violent encounters.
Kalulu submitted documentary evidence corroborating her
claims, including a copy of her medical report, a declaration
from her aunt in California, and declarations from several
Zambians who witnessed the attacks on her. The agency,
however, dismissed this evidence based on unsupportable or
trivial grounds.
I agree with the majority that the agency failed to
consider whether Kalulu’s supporting evidence
independently proves her claims for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT). “Where potentially dispositive testimony and
documentary evidence is submitted, the BIA must give
reasoned consideration to that evidence.” Cole v. Holder,
659 F.3d 762, 772 (9th Cir. 2011); see also Antonio v.
On the basis of his robust SOTU performance, I have every confidence that President Biden can more than adequately defend himself from the “Hur report.” Sadly, the same can’t necessarily be said for all the asylum seekers and other immigrants harmed by Garland’s indifference to systemic injustice in his “courts!”
This is the real “immigration crisis” that threatens our legal system and our democracy!
