Judicial Selection – Page 24 – immigrationcourtside.com

⚖️🗽👩🏽‍⚖️ASSOCIATE DEAN STACY CAPLOW @ BROOKLYN LAW ON CYRUS MEHTA BLOG — Our Immigration Courts Are Sinking — Can Lucas Guttentag Lead The Transformational Practice & Culture Changes Necessary to Save Them? — “[O]ne of the two obvious source of experienced immigration attorneys—immigrant advocates—is barely represented [among the many Immigration Judges selected over the past two decades.]”

http://blog.cyrusmehta.com/2021/08/the-sinking-immigration-court-change-course-save-the-ship.html

Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]

No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.

. . . .

Is there a life preserver on this sinking ship? Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]

Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.

Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.

Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.

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Read the complete article at the link.

I just hope that Stacy and Cyrus have sent copies of this article to Lucas, Lisa Monaco, Merrick Garland, Vanita Gupta, Kristen Clarke, and the Chairs of the House and Senate Immigration Subcommittees!

Anti-immigrant, anti-asylum, misogynist culture (actively promoted by Sessions and Barr), biased and clearly defective judicial selection procedures, and the resulting lack of practical scholarship and human rights expertise are festering problems at EOIR. They must be solved now!

The virtual exclusion of progressive practical scholars and advocates — essentially, the best and brightest — from the “21st Century Immigration Judiciary” has been both systematic and intentional. Disturbingly, the Obama Administration produced results only marginally different from Bush II and Trump!

That’s why many of us were so shocked and outraged when Judge Garland continued to “honor” fatally flawed, biased, and exclusionary hiring practices by his predecessors.

Culture also plays a role in creating a biased judiciary. Why would a talented progressive expert, particularly a women of color, want to serve in a “bogus” judiciary that basically furthers racist narratives and myths, demeans women and minimizes their persecution (probably the most significant persecuted group in the world right now), and where the AG publicly slanders courageous private advocates while treating his “personally owned judges” like enforcement stooges.

The BIA has been “inflated” back to its “Schmidt-era” 23 Appellate Judges, after Ashcroft’s transparent “purge” cut the number to an unworkable 12 to remove the liberal judges (who were in the minority anyway). Yet, for Pete’s sake, there hasn’t been an outside appointment to the BIA since the Clinton Administration — more than two decades ago! Totally inexcusable.

And, this lack of outside expertise is a primary reason why EOIR is in deep trouble that threatens the stability of our entire justice system and democracy itself. A number of the existing BIA Members were selected NOT because of their demonstrated reputations for fairness, scholarship, respect, and timeliness, but because of their notoriety for denying almost every asylum case that came before them.

Here’s an excerpt from a letter that SPLC court observers sent to then Director Juan Osuna in 2017 describing the in-court bias of two Immigration Judges sitting in Atlanta:

In one hearing, an attorney for a detained respondent argued that his client was neither a threat to society nor a flight risk. 19 In this hearing, IJ Cassidy rejected the respondent’s request for bond, stating broadly that “an open border is a danger to the community.” He then analogized an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let that person in. The attorney disagreed with IJ Cassidy, who then responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” The attorney again disagreed with both claims. IJ Cassidy concluded the hearing by stating that the credible fear standard is not a proper test for review of asylum seekers, wholly disregarding the established legal standard for such cases.20 In a private conversation after this case, IJ Cassidy told the observer that the cases that come before him involve individuals “trying to scam the system” and that none of them want to be citizens. He also remarked that he thought the U.S. should be more like Putin’s Russia, where “if you come to America, you must speak English.”21 In another hearing, IJ Wilson told a respondent that “this case is like every case . . . came in from Mexico for medical treatment then try to claim asylum.”22 [text of footnotes omitted].

Director Osuna resigned a short time later, apparently in response to his concerns about the legitimacy of policies that the Trump immigration kakistocracy at DOJ intended to pursue. (Tragically, he died a short time later.) I am unaware that James McHenry, Osuna’s successor, hand-picked by AG Jeff “Gonzo Apocalypto” Sessions to “deconstruct due process @ EOIR” ever undertook a thorough investigation or that any sanctions were imposed upon these judges. But, stunningly, both were later appointed to the BIA by former AG Barr and continue to serve today under Garland.

These are the types of life-threatening, humanity-degrading, anti-due-process actions that became routine at EOIR over the past four years, and caused my friend and expert Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law to ask in a recent press report: “How can you have a fair game when the referee is unfair?” https://immigrationcourtside.com/2021/08/03/😎👍🏼good-news-justice-even-as-latest-report-shows-massisive-failure-👎🏽🤮-eoir-poor-judging-politicized-practices-unhel/

Obviously, you can’t have a “fair game” under these circumstances. That was the whole point of the Trump DOJ, along with some gratuitous cruelty, malicious incompetence, and outright scofflaw behavior thrown in!

As Dean Caplow points out, the solutions aren’t “rocket science.” 🚀 But, so far, the problems EOIR continue to fester and undermine American justice!

🇺🇸Due Process Forever!

PWS

08-04-21

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse? — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control.

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

⚖️TAL @ SF CHRON GETS ACTION ON SEXUAL HARASSMENT @ EOIR & REST OF DOJ! — Report on Problems In Immigration Courts Finally Spurs Positive Response! — But Biden Continues To Flail Around Unnecessarily On Restoring Asylum & The Rule Of Law At Our Borders! — Where Is The Enlightened Progressive Leadership We Need?

Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/Justice-Department-to-overhaul-its-sexual-16352255.php

WASHINGTON — The Department of Justice will examine its sexual harassment policies for potential reform, a move that comes after The Chronicle’s reporting on inappropriate behavior in the immigration courts, according to an announcement obtained by the newspaper.

The announcement went out to all department staff Thursday in an email seen by The Chronicle. In it, Deputy Attorney General Lisa Monaco wrote it was “critical to our duty as principled defenders of the law to combat sexual harassment and misconduct in our own workplace and hold offenders accountable for their actions.”

Monaco said she is forming a committee to review all sexual harassment policies of the many sub-agencies of the Justice Department and assess where they may need to be changed, as well as evaluate current training and education. Two senior officials from her office will chair the effort and include members from across the department, and she said she wanted results of the review in six months.

. . . .

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Thanks, and congrats, Tal! Those with access can read the rest of Tal’s report at the link.

How very timely! I just got done posting an article about the need for better Immigration Judges. https://immigrationcourtside.com/2021/07/30/%e2%9a%96%ef%b8%8f%f0%9f%a7%91%f0%9f%8f%bd%e2%80%8d%e2%9a%96%ef%b8%8f-why-better-immigration-judges-matter-new-study-shows-that-who-your-judge-is-where-he-or-she-is-located-what-administ/

Not surprisingly, according to the research, the fairest Immigration Judges for asylum applicants and other migrants “profile” as female, with immigration experience, in the 9th Circuit, in a Dem Administration. Not exactly the Sessions, Barr, Garland (to date) judicial profile. That could have something to do with these festering problems at EOIR that haven’t been dealt with despite numerous warning signs and “alerts.”

Also, the Garland DOJ would do well to investigate and correct the effects of the virulent misogyny directed at female refugees of color by Sessions, Barr, and their toadies and furthered by EOIR policies, procedures, and precedents over the past four years. Endemic problems don’t happen by chance!

According to the Ryo-Peacock study I posted, the “difference” that better Immigration Judges could make is over 200,000 lives potentially saved or altered for the better. That’s not exactly “chump change,” particularly when the interests of family members, employers, communities, our larger justice system, and our overall society are considered.

It also calls into question the apparent lack of seriousness with which “Team Garland” has taken Immigration Judge appointments to date. Throwing dozens of “not the best qualified available” IJs — without any concerted recruitment or diversification efforts — into an already broken, biased, and reeling system that deals with human lives in a cavalier manner is NOT GOOD POLICY! Particularly when the chronic problems of bad judging at EOIR had been clearly and articulately identified and many viable action plans and reform programs had been set forth by private sector experts even before the 2020 election.

EOIR needs new progressive leadership, a new progressive expert BIA that will truly be the “Supreme Court” of immigration and human rights, and better qualified and more diverse Immigration Judges who finally will implement the noble and correct vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all!” That would include treating all individuals coming before the courts, staff, and colleagues with dignity, respect, and fairness.

Sadly, the Biden Administration’s immigration policies, whatever they are on any particular day and place, seem to be mired in confusion, questionable competence, and a barrage of largely meaningless and confusing bureaucratic doublespeak. Meanwhile, in reality, it appears that Central Americans, Haitians, and others are being returned to danger zones without any process in place to insure fair treatment. Certainly, “Title 42” is the equivalent of no process whatsoever. While “expedited removal” might have the potential to be used fairly, there is little reason to believe that it is now being fairly and professionally administered by anyone committed to fundamental fairness over expedient enforcement.

Yes, Garland has sued racist moron Gov. Greg Abbott on his illegal Trumpist grandstanding (like Texas doesn’t have real problems to solve?). Stunts like Abbott’s were entirely predictable. However, if the Biden Administration had “hit the ground running” on asylum, the issue might well have been put to bed by now, and Abbott might have to focus instead on his normal job of mis-governing Texas, rather than focusing attention elsewhere.

The Administration could and should have had a robust refugee system up and running in the Northern Triangle that would reduce border pressure, a functioning asylum system that would encourage asylum applicants to apply at ports of entry rather than seeking irregular entry, a professional screening program in place at DHS, and a relatively “backlog free” Immigration Court, led by a progressive BIA, providing positive guidance on cases that could be granted. They would also have resettlement agreements and programs in place with NGOs and legal service groups to appropriately represent and resettle those granted asylum and those in the process to the locations where they could best reside.

Fair, expert, courageous leadership, leadership with a humane, positive, practical vision of immigration and an unswerving commitment to fairly granting asylum, is critical to success on immigration, human rights, and racial justice issues. So far, nobody in the Biden Administration appears to fit the bill! That’s probably why the Administration’s confused and ever-vacillating policies are being blasted by both progressives and reactionaries — the worst of all political worlds, as I have observed before!

There are experts out here in the private sector with the vision and leadership ability to solve these problems while putting White Nationalist restrictionists like Abbott in their place. Even though it’s late, the Biden Administration still needs to get a better team in place and let them solve the problems with knowledge, competence, and compassion, not more “knee-jerk reactions” and continuations of the cruel, inhumane, counterproductive, and often illegal policies and practices of the Trump regime.

🇺🇸Due Process Forever!

PWS

07-31-21

⚖️🧑🏽‍⚖️ WHY BETTER IMMIGRATION JUDGES MATTER — New Study Shows That Who Your Judge Is, Where He Or she Is Located, & What Administration Is In Power Makes A Big Difference In Favorable Outcomes For Migrants — Even Universal Representation Might Not Be Able To Overcome Bad Judging At EOIR!

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3885995

Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings

Law & Society Review

63 Pages Posted: 15 Jul 2021

Emily Ryo

University of Southern California Gould School of Law

Ian Peacock

University of California, Los Angeles (UCLA)

Date Written: July 13, 2021

Abstract

Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.

Keywords: access to justice, immigration courts, removal proceedings, judicial decisionmaking

Suggested Citation:

Ryo, Emily and Peacock, Ian, Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings (July 13, 2021). Law & Society Review, Available at SSRN: https://ssrn.com/abstract=3885995

Download This Paper

Open PDF in Browser

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Some things to consider:

Sessions and Barr appointed over half of the current approximately 550 U.S. Immigration Judges;
Many of those appointed had little or no immigration experience — almost none had actual experience representing asylum seekers or any other migrants in Immigration Court;
With 27 IJ appointments since taking office, AG Garland now has appointed approximately 5% of the Immigration Judiciary;
Only one of Garland’s first 27 appointments has impressive progressive immigration credentials and experience;
The balance of Garland’s appointees to date profile much like Sessions’s and Barr’s — not surprising, because Garland used the same flawed recruiting and selection criteria that Barr had been using;
The average U.S. District Judge completes approximately 250 civil matters annually (including immigration matters), https://trac.syr.edu/tracreports/judge/501/;
An Immigration Judge is required to complete 700 cases annually, just too retain his or her job;
Unlike most civil cases in U.S. District Courts, lives and futures are at stake in almost all Immigration Court cases, with the family, communal, economic, and societal effect of each decision often extending far beyond the individual migrant whose life and/or future is at stake.

Members of the NDPA, let AG Garland, VP Harris, and President Biden know that we need a better and more aggressively progressive system for recruiting (virtually “null” right now — “Sir Jeffrey” Chase and I, along with other members of our Round Table, do more “recruiting” among “practical scholars and progressive experts” in the private sector than the Administration!), selecting, training, and retaining Immigration Judges for these life or death determining positions that, in a better functioning and wiser Administration, would be the door to, and training ground for, a better, more diverse, more representative, more progressive Article III Judiciary!

Lack of creative and aggressive recruiting for a better and more diverse expert Immigration Judiciary is a particular sore point! We now have our first immigrant family, African-American, AAPI, female Vice President, Kamala Harris, a talented lawyer! She has an important immigration and human rights portfolio!

So why isn’t she out there aggressively encouraging diverse, well-qualified, progressive “practical scholars and immigration advocates,” many of whom might not have seen themselves as potential Immigration Judges and BIA Members to apply for these critical jobs? Why aren’t the recruiting and selection criteria for IJs and Board Members both more transparent and involving of some outside expert input!

As VP Harris knows, the key to changing the composition of the power structure is for progressives, particularly female progressives of color, to see others like them in these positions to act as role models. It’s going to take aggressive positive actions by individuals like VP Harris, AAG Gupta, and Assistant AG Clarke to “change the face” of the Immigration Judiciary and the power structure for the better!

With the recent hiring of NDPA superstar Professor Cori Alonso Yoder, VP Harris’s alma mater, Howard University Law, now has it’s most high-profile “immigration and human rights presence” ever! Why isn’t VP Harris over there aggressively encouraging Howard Law grads to seek careers in immigration and human rights, eventually aspiring to the the Federal Judiciary, including the Immigration Judiciary? That’s how real change in the power structure happens!

This is becoming a totally inexcusable “blown opportunity” for progressives! Who knows if or when it will come again?

🇺🇸Due Process Forever!

PWS

07-30-21

⚖️☹️A GOOD MAN IN THE WRONG JOB — The Last Two GOP Administrations Cut Through The “Levi-Civiletti” Post-Watergate Institutional Reforms @ Justice Like A Hot Knife Through Soft Butter — Garland’s “Old School” Approach Is Likely Doomed To Failure, & Might Take American Democracy With It! — The “St. Louis Gets Pushed Back Put To Sea” Every Day @ Garland’s Broken & Dysfunctional DOJ!☠️⚰️

Judge Merrick Garland — Attorney General Merrick B. Garland — His poignant recollection of the inability of his great aunts to find refuge in the U.S., and their resulting deaths in the Holocaust, haven’t stopped him from daily “pushing the St. Louis back out to sea” and denying legal protections and full due process to asylum seekers at our Southern Border and at EOIR — his “wholly owned court system” that functions more like a branch of DHS enforcement than a court of law!
Official White House Photo
Public Realm

https://www.washingtonpost.com/magazine/2021/07/19/merrick-garland-justice-department-catharsis/

David Montgomery writes in the WashPost:

. . . .

“Garland believes that a thorough de-Trumpification of the Justice Department would … be called partisanship and would call into question the institution of the Justice Department, but the institution has already been called into question,” says Jeff Hauser, executive director of the Revolving Door Project of the Center for Economic and Policy Research. “Sessions and Barr came in with a goal of assaulting and undermining the institution of the Justice Department, and it’s just weird to presume that they failed. We presume that they succeeded. They were in the building. They hired their minions. They assessed people. They politicized everything. Garland presuming that the previous Department of Justice was behaving in good faith requires the same suspension of disbelief as believing dragons are real in a fantasy novel.”

. . . .

And so, we’ll also be judging Garland by another standard: how well his approach fortifies the institution against a future administration that once again disrespects norms and politicizes the rule of law.

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These quotes go to the heart of the problem with Garland’s stewardship and his naive, ivory tower, ineffectively timid approach to restoring the rule of law at Justice. “By the book” is NOT an effective strategy against opponents who seek to burn the book, bury the ashes, and lie about it! It’s basically no “strategy” all!

I’d be shocked, as would most knowledgeable observers, if the next GOP Administration doesn’t “disrespect the norms and politicize the rule of law.” Not only have the past two GOP Administrations done exactly that, in spades, but that’s basically what today’s GOP stands for: neo-fascist, anti-democracy rule based on big lies and a cult of personality.

To the extent the modern GOP believes in anything, it’s the exercise of power without restraint of law or morality. “Why? Because we can, and you can’t stop us. We’re in power, and you aren’t,” was largely the Trump McConnell mantra, particularly when it came to judges. How did the dying plea of RBG and the appeals of Dems for fairness and consistency in Supremes’ appointments work out? It was a classic “heads I win, tails you lose” that once again left the Dems grasping at thin air.

So, these folks are going to respect long-gone “norms” from the 1970s? “Norms” that couldn’t and didn’t stop Ashcroft, Gonzalez (“Gonzo I”), Mukasey, Sessions, or Barr? You have to be kidding? I don’t know what universe Garland has been living in for the past four plus years, but it doesn’t appear to be this one.

Contrary to Garland’s approach, there is absolutely nothing wrong with:

Coming clean on recent abuses at DOJ;
Replacing lawless immoral intentional misconstructions of law with better progressive ones that adhere to and further both the rule of law and “good government;” and
Replacing political hacks who furthered the White Nationalist agenda or other personnel who “went along to get along” with abuses, to keep their jobs, with progressive experts committed to due process and best practices who’ll get the job of restoring the rule of law, respect, and human dignity done.

Not only is there nothing wrong with the foregoing, but they are moral and practical imperatives if lives are to be saved and our democracy preserved! For Pete’s sake, these are actually the things that Biden and Harris campaigned upon and won! Why is Garland reticent to act upon truth?

This isn’t an “academic exercise!” It’s an actual life or death moment for migrants and for our democracy! And, the opponents are not folks who intend to honor norms established by Garland or any other Dem.

Indeed, they will characterize all of his actions as “radical socialism,” as they already have, regardless of the truth. In many ways, Garland’s incremental, largely passive, approach to “de-Trumpifying justice @ Justice” has been a huge gift to GOP anti-democracy insurrectionists and restrictionists. But, if I were him, I wouldn’t wait for the “thank you note.”

To shrink from the bold decisive actions necessary to clean up the disgraceful mess at the DOJ and its most grotesque manifestations at EOIR shows not only a lack awareness, but a lack of belief in the progressive, democratic, humane values that got Biden and Harris elected in the first place and got Garland his job.

And, it’s not as if the problem with the values and institutional integrity at DOJ started only in the Trump regime. Under Bush II, Ashcroft and his advisor, notorious White Nationalist xenophobe Kris Kobach, had their plan to dismantle due process and fundamental fairness in the Immigration Courts, through compromising the BIA, in action before they even set foot in the building 10th & Pa. Ave. Those changes have actually cost some migrants their lives, and some DOJ attorneys their jobs (for the “crime” of standing up for due process for migrants) even before the Trump kakistocracy arrived.

And, al la Garland, the Obama Administration’s failure to either acknowledge the historical truth or take the obvious and necessary corrective actions sent our Immigration Courts and justice for migrants into a steep decline that became a “death spiral” under Sessions (“Gonzo Apocalypto”) and Barr and continues its accelerated downward trajectory under Garland. It’s a contributing factor in the largely self-created 1.3 million case Immigration Court backlog generated by Sessions and Barr at EOIR.

Indeed, the lack of quality, intellectual honesty, practical guidance, humane values, common sense, expertise, and legitimacy at EOIR has spread to and adversely affected other areas of our beleaguered justice system and now threatens to take down everything in a messy heap. Why a former Article III Appellate Judge can’t grasp that reality and act accordingly is beyond me.

Maybe its because he didn’t personally experience enough of EOIR’s deadly, failed, corner-cutting “work product” at the D.C. Circuit because DC has no “resident Immigration Court.” Maybe it’s because he can’t “connect the dots” between his relatives who died in the Holocaust and having no legal asylum system for those arriving at our Southern border and denying asylum seekers full due process every day @ EOIR.

For the reasons set forth in the article, it seems that Judge Garland is philosophically and by personality incapable of leading and implementing long overdue, critical progressive changes at this point in his otherwise distinguished career. The only hope would be that one of his advisors could light a fire and get him out of his inept centrist institutionalist funk.

But, the two best hopes to do that, Associate Attorney Vanita Gupta and Assistant AG for Civil Rights Kristen Clarke, who should be personally familiar with the practical and racial justice disaster at EOIR and its overall adverse effects on justice in America, have failed to make a visible impact.

Garland needs a practical expert like Dean Kevin Johnson at U.C. Davis Law, Professor Karen Musalo at the Center for Gender and Refugee Studies at Hastings Law, Jaya Ramji-Nogales, Associate Dean at Temple Law, Judy Rabinowitz at ACLU, Marielena Hincappie at the National Immigration Justice Center, or someone of equal expertise and stature in civil and human rights to advise him and lead the reform effort at EOIR. Sadly, he does not appear interested in surrounding himself with such capable, talented individuals who could “save him from himself” while saving the lives of those like his great aunts who perished in the Holocaust for want of a viable refugee and asylum system.

Like Garland, I was at the DOJ during the Levi-Civiletti post-Watergate reform era. I once knew him and certainly helped out his “boss” Ben Civiletti on several occasions.

Somewhere in the “archives,” I have a handwritten note from Ben Civiletti expressing his gratitude that he never had to use the “administrative subpoena” and “designation as an “immigration officer” that I had drafted for him in the midst of one of a number of “immigration emergencies” involving a plane on the tarmac.

Somewhere along the line, Merrick seems to have forgotten that even Civiletti was willing to take bold actions when necessary to advance the cause of immigration justice! There was no “precedent” for the Attorney General personally serving an INS subpoena. But, Civiletti was on the verge of doing it, until “Plan A” prevailed, and the crisis was resolved without resorting to “Plan B” or even “Plan C.”

I was also there and directly affected when the likes of Ashcroft, “Gonzo I”, Kobach, and Mukasey cut through those post-Watergate reforms at EOIR as though they never existed, with little resistance except for a few of us “survivors” who adapted and continued to fight for due process and individual justice in a deteriorating system.

I watched in disgust and disbelief as the Obama Administration (“change?” — not so much in immigration) completely “blew” the opportunity to make life and democracy saving corrections at EOIR. I then saw from the outside as “Gonzo Apocalypto” and Barr aggressively and systematically dismantled American justice, starting with the Immigration Courts. Their job was made infinitely easier by the indolence of the Obama Administration in failing to systematically bring progressive reforms and appoint more progressive judges at EOIR.

But, those of us “on the outside” were not just “passively outraged” by the due process and human rights abuses flowing from DOJ, we took action! Among many groups forming the New Due Process Army (“NDPA”), our Round Table of Former Immigration Judges, some of whom had resigned or retired as an act of conscience, helped lead the charge against the Trump regime’s inhumane, scofflaw policies and bogus legal interpretations.

We filed over 100 amicus briefs in tribunals from the Supremes to the BIA, many of them successful in helping to correct and reverse the regime’s anti-due process, anti-immigrant, racially driven policies. We also wrote, educated, did media interviews, organized, inspired others to join the resistance, and voted for change!

Even assuming, as I do, that any future GOP Administration would move to undo progressive reforms and replace progressive judges, their job would be made much more difficult if Garland creates the progressive judiciary that he should at EOIR. Moreover, even if exiled, “true progressive practical scholars” will form the expert backbone of the resistance to neo-fascism in the “next generation” of the Round Table and the NDPA.

Some “graduates” of a progressive Immigration Judiciary could be elevated to the Article III Judiciary where they will have continuing beneficial influence beyond the ability of the next GOP Administration to change. Others could use their knowledge of the system to fight the forces of nativism, restrictionism, White Nationalist myths, and mindless cruelty. Others will run for office and improve our moribund legislative branch! Who knows, we could even get Article I during the Biden Administration, giving a progressive immigration judiciary yet another degree of protection from right-wing political shenanigans!

Garland’s “stuck in the irretrievable past” approach to EOIR and the DOJ generally is blowing a golden, perhaps never-to-come again, chance to finally create an effective progressive judiciary at EOIR and, perhaps most important, to save lives and stop “pushing the St. Louis” back out to sea! It’s something that Biden can’t fully achieve in the Article IIIs. It’s painful to watch him squander the opportunity.

Merrick Garland might well have been a great Supreme Court Justice had Mitch McConnell and the GOP had a serious interest in institutional integrity and preserving norms. They didn’t (which should have been “signal” that got Garland’s attention)! Garland might also have been great Attorney General in a bygone era.

Sadly for both Garland and America, he’s not the “right fit” for the job under today’s realities. Not only will that forever tarnish his reputation, but it could well cost the rest of us our democracy.

🇺🇸Due Process Forever! Timidity and false “restraint” in delivering equal justice for all, never!

The meek might well inherit the earth in the next world. But, they won’t restore the rule of law to the Department of Justice in this one!☠️

Come on, Judge Garland, take off the blinders and show that you are smart, flexible, and capable enough to get beyond the limitations of your past experiences and take the bold, aggressive, courageous, potentially controversial, yet absolutely necessary and long overdue, actions necessary to restore the rule of law at Justice in the 21st year of the 21st Century. And, that starts with progressive due process reforms and major personnel changes at EOIR!

PWS

07-26-21

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HISTORICAL ADDENDUM FROM HON. “SIR JEFFREY” CHASE:

I actually had Civiletti’s desk at the BIA (I was told that Tony Moscato had brought it with him from Main Justice).

PWS

07-27-21

🗽ASYLUM IS OUR LEGAL OBLIGATION, NOT AN “OPTION” OR SOMETHING TO BE “DETERRED” — “For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option. . . . ‘I want to live. I want to be somebody. Nobody wants to die.’”

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration’s continuation of the Trump regime’s illegal and deadly anti-asylum policies at the border is totally unacceptable!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

FROM SPLC:

The message was loud and clear: “Do not come.”

This would be the Biden administration’s initial attempt to deter migrants who fled danger in their home countries from seeking protection in the U.S.

First, President Biden in March discouraged migrants from trekking north to the U.S.-Mexico border to seek asylum. He suggested they stay in their home countries – where many face violence and persecution – as the administration addressed an increase in the number of unaccompanied migrant children crossing the southwestern border.

Then, the administration continued to rely on the contested Trump-era Title 42 order by the Centers for Disease Control and Prevention (CDC) to reject migrants at ports of entry and expel those who cross the U.S.-Mexico border without authorization, thereby denying their legal right to seek asylum.

And in June, the administration delivered another warning to would-be asylum seekers from Guatemala: “Do not come,” said Vice President Kamala Harris during a news conference alongside Guatemalan President Alejandro Giammattei. “The United States will continue to enforce our laws and secure our borders. If you come to our border, you will be turned back.”

Sarah Rich, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project, said the vice president’s comments were strikingly similar to rhetoric employed by the Trump administration.

“Seeking protection from violence and persecution is a fundamental human right, and the right to seek asylum is protected by U.S. and international law,” Rich said. “These remarks fly in the face of the right to seek asylum in the U.S. and indicate a disturbing continuity between the Trump administration and the Biden-Harris administration.”

For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option.

“I fled my country because I wanted to survive,” Emiliana Doe, whose name has been changed in this story to protect her identity, told the SPLC in Spanish. “I want to live. I want to be somebody. Nobody wants to die.”

READ MORE

In solidarity,

Your friends at the Southern Poverty Law Center

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Speak out against the Biden Administration’s continuation of Trump’s illegal, inhumane, anti-asylum policies at the border! Demand that AG Garland replace unqualified “Miller Lite” anti-asylum Immigration Judges, who happily furthered the past regime’s xenophobic, anti-due-process policies, with far better qualified progressive experts! Demand a BIA that will be a courageous leader in granting legal protection and reducing backlogs through best practices and full due process! Demand that Garland stop dragging his feet and finally fulfill the original EOIR vision of “guaranteeing fairness and due process for all.” Demand an Attorney General with the backbone and integrity to tell Biden, Harris, & Mayorkas that their continued abrogation of asylum laws and international obligations, not to mention Constitutional protections, is grossly illegal and must end NOW!

By contrast with Garland’s timid, dilatory, and often apparently indifferent approach to the rule of law for migrants, not to mention human lives, Jeff Sessions had absolutely no problem intervening, without invitation, in any agency’s programs and policies to advance his White Nationalist, nativist, xenophobic mis-interpretations of the law!

🇺🇸⚖️Due Process Forever!

PWS

07-25-21

⚖️EXPERTS TO DISCUSS FUTURE OF IMMIGRATION COURTS ON JULY 23! — Join Judge Amiena Khan (NAIJ) & Julia Preston (Marshall Project, former NY Times) For An Enlightening Discussion From Two “Practical Scholars” Who Have Seen The Harsh Realities Of Today’s Broken & Dysfunctional EOIR “Up Close & Personal!”

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan Executive Vice President National Association of Immigration Judges (NAIJ)

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-future-of-the-immigration-courts-free-webinar-july-23-2021

The Future of the Immigration Courts: Free Webinar, July 23, 2021

Documented Talks: The Future of the Immigration Courts

“The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? Join Immigration Judge Amiena Khan, President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project, for a discussion on the future of the immigration courts.

The two will discuss where the judge’s union stands in its decertification fight; what judges are hoping to see from this administration and what the lasting impacts of the past 4 years will be.

Join us at 1 pm on July 23rd, 2021

Panelists:

Hon. Amiena Khan:

Judge Khan is the President of NAIJ. Judge Khan was appointed as a United States Immigration Judge in New York by Attorney General Eric Holder in December 2010. In her personal capacity, she is a member of the Federal Bar Association (FBA) and is the Vice-Chair of the Federal Bar Association Immigration Law Section.

Judge Khan is appearing in her capacity as President of NAIJ. Her views do not represent the official position of the Department of Justice, the Attorney General, or the Executive Office for Immigration Review. Her views represent her personal opinions, which were formed after extensive consultation with NAIJ membership.

Julia Preston:

Julia Preston is a Contributing Writer at The Marshall Project. Preston previously worked for 21 years at The New York Times. She was the National Correspondent covering immigration from 2006 through 2016, and a correspondent in Mexico from 1995 through 2001, among other assignments. She is a 2020 winner of an Online Journalism Award for Explanatory Reporting, for a series by The Marshall Project on myths about immigration and crime. She was a member of the Times staff who won the 1998 Pulitzer Prize for reporting on international affairs, for a series on the corrosive effects of drug corruption in Mexico.

Time

Jul 23, 2021 01:00 PM in Eastern Time (US and Canada)

* Required information

First Name *

Last Name *

Email Address *

Confirm Email Address *

Information you provide when registering will be shared with the account owner and host and can be used and shared by them in accordance with their Terms and Privacy Policy.

Register”

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

Should be a great panel from two real experts from the NDPA!

Sadly, however, it’s not clear that Judge Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and others who are supposed to be fixing the dysfunction will be among the audience. Nor do I see much concrete evidence that they have established a meaningful dialogue with those, like Amiena and Julia, who have the expertise and creative problem solving ability to fix the DOJ’s embarrassingly broken “courts” before more migrants and their attorneys are abused.

In my view, and the view of many others, the “destructive phase” of the last four years moved much more rapidly and with more purpose than the “reconstructive and improvement phase” that was promised by the Biden Administration.

There are still far too many of those who were “part of the problem” in key positions, and far, far too few, if any, dynamic new faces who have been brought in (or promoted from within) with the capability and the mandate to fix the mess, establish progressive values, and return to a due process/fundamental fairness/best practices focus!

There are “reliable rumors” of some better appointments in the offing. But, it hasn’t happened till it happens.

🇺🇸Due Process Forever!

PWS

07-20-21

⚖️🧑🏽‍⚖️☹️GARLAND’S 10 NEW IJ APPOINTMENTS CONTINUE TO HEAVILY FAVOR GOVERNMENT OVER PRIVATE PRACTICE, CLINICS, ACADEMIA — Only 3 Came Directly From Private Practice — Biden Administration “Disses” Progressive Immigration/Human Rights Experts Who Helped Put Them In Office!

https://www.justice.gov/eoir/page/file/1412741/download

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365

PAO.EOIR@usdoj.gov @DOJ_EOIR www.justice.gov/eoir

July 16, 2021

EOIR Announces 10 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced 10 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ). ACIJs are responsible for overseeing the operations of their assigned immigration courts. In addition to their management responsibilities, they will hear cases. IJs preside in formal judicial hearings and make decisions that are final, unless formally appealed.

After a thorough application process, Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White to their new positions.

Biographical information follows:

Megan R. Jackler, Assistant Chief Immigration Judge, New Orleans Immigration Court

Megan R. Jackler was appointed as an Assistant Chief Immigration Judge to begin supervisory immigration court duties and hearing cases in July 2021. Judge Jackler earned a Bachelor of Arts in 2003 from Barnard College and a Juris Doctor in 2008 from the American University Washington College of Law. From 2009 to 2021, she served as a U.S. Navy Judge Advocate, in the following locations: Norfolk, Virginia; Pearl Harbor, Hawaii; Gulfport, Mississippi; Mazar- e-Sharif, Afghanistan; and Yokosuka, Japan. From 2003 to 2005, she was a Litigation Paralegal with Davis Polk & Wardwell LLP, in New York. Judge Jackler is a member of the District of Columbia Bar, New Jersey State Bar, New York State Bar, and Virginia State Bar.

Justin S. Dinsdale, Immigration Judge, Houston – Greenspoint Park Immigration Court

Justin S. Dinsdale was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Dinsdale earned a Bachelor of Arts in 2000 from Texas Christian University and a Juris Doctorate in 2004 from South Texas College of Law Houston. From 2015 to 2021, he served as an Assistant U.S. Attorney with the U.S. Attorney’s Office for the Southern District of Texas, in Brownsville. From 2011 to 2015, he was in private practice with the Law Office of Justin S. Dinsdale, in Brownsville. From 2008 to 2010, he was an Associate Attorney with Rodriguez, Colvin, Chaney & Saenz LLP, in Brownsville. From 2004 to 2008, he served as an Assistant District Attorney with the Cameron County District Attorney’s Office, in Brownsville. Judge Dinsdale is a member of the Idaho State Bar and the State Bar of Texas.

Communications and Legislative Affairs Division

EOIR Announces 10 New Immigration Judges

Page 2

Alexander H. Lee, Immigration Judge, Houston – Greenspoint Park Immigration Court

Alexander H. Lee was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Lee earned a Bachelor of Arts in 1997 from Kenyon College and a Juris Doctor in 2002 from Chicago-Kent College of Law. From 2017 to 2021, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Pearsall and San Antonio, Texas. From 2011 to 2017, he served as a Staff Attorney for the Washington State Department of Health, in Tumwater, Washington. From 2005 to 2011, he was in private practice in Olympia, Washington. Judge Lee is a member of the Washington State Bar.

Loi L. McCleskey, Immigration Judge, San Francisco Immigration Court

Loi L. McCleskey was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge McCleskey earned a Bachelor of Arts in 1996 from Capital University and a Juris Doctor in 1999 from Capital University Law School. From 2013 to 2021, she served as an Administrative Hearing Officer Supervisor; from 2011 to 2013, Senior Administrative Hearing Officer; and from 2003 to 2011, Administrative Hearing Officer for the State of Ohio in Columbus. From 2000 to 2003, she was in private practice in Columbus. Judge McCleskey is a member of the Ohio State Bar.

Edwin E. Pieters, Immigration Judge, New York – Federal Plaza Immigration Court

Edwin E. Pieters was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pieters earned a Bachelor of Science in 1987 from State University of New York at New Paltz; a Master of Political Science/Governmental Law in 1992 from City University of New York at Brooklyn College; a Master of Public Administration in 2000 from City University of New York at Baruch College; a Juris Doctorate in 2002 from the City University of New York Law School at Queens College; and a Master of Law in 2005 from the State University of New York at Buffalo Law School. From 2018 to 2021, he served as a Hearing Officer for the New York City Office of Administrative Trials and Hearings. From 2006 to 2017, he served as an Assistant District Attorney at the Kings County District Attorney’s Office, in Brooklyn. Judge Pieters is a member of the New York State Bar.

Artie R. Pobjecky, Immigration Judge, Houston – Greenspoint Park Immigration Court

Artie R. Pobjecky was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pobjecky earned a Bachelor of Arts in 1997 from the University of Central Florida and a Juris Doctor in 2001 from Baylor University School of Law. From 2007 to 2021, she was a Partner with Pobjecky & Pobjecky LLP, in Winter Haven, Florida. From 2015 to 2017, she served as Chair of the American Immigration Lawyers Association, Central Florida Chapter. From 2002 to 2007, she was an Associate Attorney with J. David Pobjecky PA, in Winter Haven. Judge Pobjecky is a member of the Florida Bar, Pennsylvania Bar, and the State Bar of Texas.

Jodie A. Schwab, Immigration Judge, Houston – Greenspoint Park Immigration Court

Jodie A. Schwab was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Schwab earned a Bachelor of Arts in 1990 from the University of Texas at San Antonio and a Juris Doctor in 1993 from St. Mary’s University School of Law. From 2018 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Houston. From 2017 to 2018, she was Senior Counsel with Greer, Herz & Adams LLP, in League City, Texas. From 2006 to 2017,

Communications and Legislative Affairs Division

EOIR Announces 10 New Immigration Judges

Page 3

she served as a Law Clerk to the Honorable Magistrate Judge John Froeschner, with the U.S. District Courts, Southern District of Texas. From 2005 to 2006, she served as a Deputy Attorney General, California Office of the Attorney General, in Sacramento, California. From 2004 to 2005, she was a Litigation Attorney for a Staff Counsel Office with Farmers Insurance Exchange, in Stockton, California. From 1994 to 2003, she was Counsel at United Services Automobile Association, in San Antonio. Judge Schwab is a member of the State Bar of California and State Bar of Texas.

Kenneth S. Sogabe, Immigration Judge, Seattle Immigration Court

Kenneth S. Sogabe was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Sogabe earned a Bachelor of Arts in 1995 and a Master of Arts in 1996, both from San Francisco State University, and a Juris Doctor in 2001 from Golden Gate University School of Law. From 2018 to 2021, he served as Associate General Counsel, Office of General Counsel, Department of Defense Education Activity, in Okinawa, Japan. From 2014 to 2018, he served as an Attorney Advisor, Office of Chief Counsel, Customs and Border Protection, DHS, in San Francisco. From 2007 to 2014, he served as a Staff Attorney for the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. From 2001 to 2006, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security (DHS), in San Francisco. Judge Sogabe is a member of the State Bar of California.

Lydia G. Tamez, Immigration Judge, Houston – Greenspoint Park Immigration Court

Lydia G. Tamez was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Tamez earned a Bachelor of Arts in 1981 from Yale University and a Juris Doctor in 1985 from Yale Law School. From 2019 to 2021, she served as an Associate Judge for the City of Houston Municipal Courts. From 2016 to 2021, she was in private practice in Houston. From 2015 to 2016, she was a Counselor at Law with Graves and Graves LLP, in Houston. From 2012 to 2015, she was a Partner with Foster LLP, in Houston. From 2003 to 2011, she was an Associate General Counsel; from 1999 to 2003, a Senior Attorney; and from 1995 to 1999, an Attorney for Legal and Corporate Affairs, with Microsoft Corporation, in Redmond, Washington. From 1986 to 1995, she was an Attorney for Tindall and Foster PC, in Houston. Judge Tamez is a member of the State Bar of Texas and the Washington State Bar.

Romaine L. White, Immigration Judge, Houston – Greenspoint Park Immigration Court

Romaine L. White was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge White earned a Bachelor of Arts in 1983 from the University of Virginia and a Juris Doctor in 1986 from the University of Georgia School of Law. From 2012 to 2021, she served as an Administrative Law Judge for the Louisiana Division of Administrative Law, in New Orleans. From 2004 to 2021, and previously from 1999 to 2001, she was a sole practitioner with the Law Office of Romaine L. White LLC, in Houma, Louisiana. From 2001 to 2006, she served as an Assistant Parish Attorney for the Terrebonne Parish Consolidated Government, in Houma. From 2001 to 2004, she was an Associate Attorney with McNabb and Associates, in Houma. From 1997 to 1998, she served as Deputy General Counsel for the State Bar of Georgia, in Atlanta. From 1991 to 1997, she served as a Senior Assistant City Attorney for the City of Atlanta. From 1986 to 1991, she was an Associate Attorney with Griffin, Cochrane, & Marshall, in Atlanta. Judge White is a member of the State Bar of Georgia and the Louisiana State Bar. Communications and Legislative Affairs Division

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The three appointments from private practice include Judge Linda G. Tamez of Houston who appears to have served as a Municipal Judge in Houston while in private practice from 2019-21. Similarly, Judge Romaine L. White of Houston Greenspoint appears to have maintained a private practice while serving as a Louisiana State ALJ from 2012-21.

The sole new IJ to list AILA experience is Judge Artie J. Pobjecky of the Houston Greenspoint Immigration Court, who served as Chair of the AILA, Central Florida Chapter, from 2015-2017. She is also the only new appointee who appears to have been working primarily in the private practice of immigration law at the time of her appointment.

Several other appointees did have some type of private sector experiences, although they were serving in various government positions at the time of appointment. None, however, stood out as having much, if any, experience representing individuals in Immigration Court in this broken and dysfunctional system.

It’s super critical for NDPA members to 1) keep applying en masse for these jobs, and 2) let your extreme dis-satisfaction with Garland’s tone-deaf, one sided appointments to the Immigration Courts be known to the Biden Administration.

We need to keep attacking until the walls of anti-expert, anti-advocate, anti-private-sector, anti-diversity bias that has been “baked into” the DOJ IJ and BIA selection process for the better part of several decades is finally broken and excellence and practical scholarship in immigration, human rights, and due process finally break through and prevail. Also, continuing to pummel the Garland EOIR’s substandard work product in the Article IIIs will keep illustrating the point that something has got to change here!

In the meantime, keep pushing Congress for an independent Immigration Court that will be free of the DOJ bureaucracy and will require a merit-based selection system with input from “outside experts!”

🇺🇸Due Process Forever! Status quo, never!

PWS

07-19-21

⚖️9TH CIR.’S PROGRESSIVES TAKE IT ON THE NOSE FROM CONSERVATIVE COLLEAGUES & SUPREMES — Dissent Matters — Immigration Among Key Supremes’ Reversals

https://www.latimes.com/politics/story/2021-07-13/with-trump-appointees-9th-circuit-suffers-another-year-of-reversals-at-supreme-court

David G. Savage & Maura Dolan report in the LA Times:

. . . .

“There is still a large cohort of liberal judges” on the 9th Circuit, said Ed Whelan, a conservative legal analyst in Washington, “but there are now many conservative appointees who are vigilant in calling them out.”

In total, 47 judges sit on the 9th Circuit — 24 appointed by Republicans going back to President Nixon, and 23 named by Democrats starting with President Carter.

Many of those judges work part time. Of the full-time jurists, 16 are Democratic and 13 are Republican appointees.

The size of the circuit — the nation’s largest — partly explains why its cases are often subject to Supreme Court review.

“The 9th Circuit is so vastly larger than any other circuit that it is inevitable they are going to take more 9th Circuit cases,” said Erwin Chemerinsky, dean of UC Berkeley’s law school.

Although this year’s 9th Circuit reversal rate was unusually high, the high court in fact overturned 80% of all the cases it reviewed, Chemerinsky noted.

Moreover, only a tiny percentage of appellate decisions are reviewed by the Supreme Court. Typically, the 9th Circuit hands down about 13,000 rulings a year.

Chemerinsky noted the Supreme Court overturned several 9th Circuit cases on immigration and habeas corpus, the legal vehicle for releasing someone from detention. “The 9th Circuit is historically more liberal on immigration and habeas cases,” he said.

Some reversals occurred in cases that were not ideological, however: The high court overturned a 9th Circuit decision by Republican appointees on what constitutes a robocall.

Though the Supreme Court split along ideological lines on property rights, voting rights and conservative donor cases from the 9th Circuit, the justices were unanimous in reversing the 9th Circuit in several immigration cases.

On June 1, they overturned a unique 9th Circuit rule set by the late liberal Judge Stephen Reinhardt. Over nearly 20 years, he had written that the testimony of a person seeking asylum based on a fear of persecution must be “deemed credible” unless an immigration judge made an “explicit” finding that they were not to be believed.

In one of his last opinions, Reinhardt approved of asylum for Ming Dai, a Chinese citizen who arrived in the U.S. on a tourist visa and applied for refugee status for himself and his family. He said they were fleeing China’s forced abortion policy.

Only later did immigration authorities learn that his wife and daughter had returned to China because they had good jobs and schooling there, but the husband had no job to return to.

An immigration judge had set out the full story and denied the asylum application, only to be be reversed in a 2-1 ruling by a 9th Circuit panel. The panel cited Reinhardt’s rule and noted that although evidence emerged casting doubt on Dai’s claims, there had been no “explicit” finding by an immigration judge so his story had to be accepted.

“Over the years, our circuit has manufactured misguided rules regarding the credibility of political asylum seekers,” Senior Judge Stephen S. Trott wrote in dissent. Later, 11 other appellate judges joined dissents arguing for scrapping this rule.

Last fall, Trump administration lawyers cited those dissents and urged the Supreme Court to hear the case. They noted the importance of the 9th Circuit in asylum cases. Because of its liberal reputation, “the 9th Circuit actually entertains more petitions for review than all of the other circuits combined,” the lawyers said.

In overturning the appeals court in a 9-0 ruling, Justice Neil M. Gorsuch began by noting that “at least 12 members of the 9th Circuit have objected to this judge-made rule.”

Justice Sonia Sotomayor delivered another 9-0 ruling holding that an immigrant arrested for an “unlawful entry” after having been deported years ago may not contest the basis of his original deportation. The 9th Circuit had said such a defendant may argue his deportation was “fundamentally unfair,” but “the statute does not permit such an exception,” Sotomayor said in U.S. vs. Palomar-Santiago.

The high court’s furthest-reaching immigration ruling did not originate with the 9th Circuit, but it nonetheless overturned a 9th Circuit decision.

At issue was whether the more than 400,000 immigrants who had been living and working in the U.S. under temporary protected status were eligible for long-term green cards. The Philadelphia-based 3rd Circuit said no, rejecting a green card for a Salvadoran couple who had entered the country illegally in the 1990s and had lived and worked in New Jersey ever since.

The 9th Circuit had taken the opposite view; Trump lawyers cited this split as a reason the high court should take up the New Jersey case. On June 7, Justice Elena Kagan spoke for the high court in ruling that the 3rd Circuit was right and the 9th Circuit wrong. To obtain lawful permanent status, the immigration law first “requires a lawful admission,” she said in Sanchez vs. Majorkas.

The 9th Circuit’s sole affirmance came in a significant case: By a 9-0 vote in NCAA vs. Alston, the justices agreed with the 9th Circuit that college sports authorities could be sued under antitrust laws for conspiring to make billions of dollars while insisting the star athletes go unpaid.

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

Read the complete article at the link.

This confirms the importance of the Biden Administration getting more progressive voices on Federal Courts at all levels, including the Immigration Courts!

First, not all important cases go to the Supremes, and those that do often take years to get there and be resolved. In the meantime, the rulings of BIA and the Circuits are often the “final word.”

Even at the individual Immigration Judge level, only a small minority of cases are appealed. So the difference between progressive expert judges committed to due process, fundamental fairness, and humane practical interpretations and judges appointed because of a belief that they would “go along to get along” with DHS Enforcement is huge — basically life or death for many asylum seekers, other migrants, and their families (often U.S. citizens or LPRs).

Second, even where outvoted, progressive judges can often provide much more cogent, understandable, and practical alternatives to “knee jerk restrictionist/nativist” interpretations. Not only are these “better interpretations” often picked up and successfully argued and expanded by advocates, but they often expose shallow, specious reasoning by restrictionists and serve as “signposts to a better future” even if it sometimes takes years or even decades for the system to catch up. Also, dissents can prompt remedial legislation or needed oversight.

Indeed a number of the “Gang of Five” dissents from the “Schmidt-era BIA,” which basically cost us our jobs, still look very “spot on” decades later — particularly as Circuits continue to expose the intellectual dishonesty and corner-cutting sloppiness of far too many EOIR decisions in “life or death” matters!

Obviously, Trump McConnell and the right-wing activist organizations they parroted and enabled have had an immediate, large-scale, largely negative, effect on American Justice — from the Supremes all the way down to the Immigration Courts. It’s essential that the Biden Administration fight back with courageous, well-qualified, progressive “practical scholars” at all levels of the Federal Judiciary. Judges with the guts and integrity to expose and push back against the stilted, often anti-democracy, far right agenda of too many of the Trump-McConnell appointees.

In this respect, creating a progressive “model judiciary” to supersede the godawful, dysfunctional mess at EOIR should be the “low hanging fruit.” In practical terms, it also will help reduce backlog, raise the level of Immigration Court practice, and hold DHS accountable to the rule of law. It should also be a model for what a better progressive Article III Judiciary could and should look like, all the way up to the Supremes!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

07-19-21

⚖️YET ANOTHER “WAKEUP CALL” FOR JUDGE GARLAND, AS 3RD CIR. CASTIGATES THE “HASTE MAKES WASTE, FORM CHECKER, DEPORTATION ASSEMBLY LINE CULTURE” @ EOIR! — “We cannot allow an IJ or the BIA to dispense with an adequate explanation of a final decision merely to facilitate or accommodate administrative expediency.”

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-something-to-review—valarezo-tirado-v-a-g

Dan Kowalski reports for LexisNexis Immigration Community:

CA3 on “Something to Review” – Valarezo-Tirado v. A.G.

Valarezo-Tirado v. A.G.

“We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by the [government] on appeal . . . are persua[sive]” because we could not “perform meaningful review of [such an] order.” Here, we have even less to work with. … The most fundamental notion of due process must include an opportunity for meaningful judicial review. We reiterate that “judicial review necessarily requires something to review and, if the agency provides only its result without an explanation of the underlying fact finding and analysis, a court is unable to provide judicial review.” The required review is simply not possible when we are provided with nothing more than the kind of one-line checklist that is relied upon here. We cannot allow an IJ or the BIA to dispense with an adequate explanation of a final decision merely to facilitate or accommodate administrative expediency. Since “the [IJ]’s failure of explanation makes it impossible for us to review its rationale, we [will] grant [Valarezo-Tirado’s] petition for review, vacate the [IJ’s] order, and remand the matter to [the IJ] for further proceedings consistent with this opinion.” … A 2019 study found that “on average each [immigration] judge currently has an active pending caseload of over two thousand cases.” Nevertheless, we cannot allow incredibly difficult logistics to give license to IJs to skirt their responsibilities. This includes the obligation to inform the petitioner of the reasons for the IJ’s decision and provide an adequate explanation of the decision that does not require us to parse through the testimony in search of evidence that supports it. A two-sentence recitation on a bullet-point form will rarely, if ever, provide sufficient reasoning for a decision. A decision, such as the one here, that does not refer to record evidence will never suffice. Because, here, the IJ’s decision was not supported by substantial evidence, we will vacate the decision and order and remand to the IJ for proceedings consistent with this opinion.”

[Hats off to pro bono publico counsel Robert D. Helfand and Charles W. Stotter!]

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

Hey, Jeff “Gonzo Apocalypto” Sessions said it: “Volume is critical. It just is.” For him, and then Barr, it was “all about numbers,” never about quality, fairness, or judicial independence!

SESSIONS USES SPEECH TO U.S. IMMIGRATION JUDGES TO SPREAD LIES, MOUNT ALL OUT ATTACK ON US ASYLUM LAW AND INTERNATIONAL PROTECTION LAWS – Targets Most Vulnerable Refugee Women Of Color For Latest Round Of Legal Abuses – Orders Judges To Prejudge Applications In Accordance With His Rewrite Of Law – It’s “Kangaroo Court” – The Only Question Now Is Whether Congress & Article III’s Will Let Him Get Away With Latest Perversion Of Justice @ Justice!

Interestingly, this was a “reasonable fear review” proceeding following “reinstatement” of a removal order. Even before the Trump kakistocracy, Immigration Judges once were told that there was no need for a reasoned decision because their actions were “non-reviewable” by the BIA or the Circuits. Later, in the Obama Administration, as some Circuits took an interest in these cases, judges were encouraged by EOIR HQ to enter brief decisions so that OIL could defend them on appeal, if their “no jurisdiction to review” argument failed.

There is a serious defect in a system that provides no meaningful review or appellate direction in cases with life or death consequences. Obviously, this is a system focused on something other than fairness, scholarship, quality, and justice!

After years of being told (even forced, through bogus “production quotas’) to “cut corners” and “move ‘em out” by their political “handlers” at the DOJ, neither EOIR “management” nor the current BIA is capable of providing the bold leadership, progressive “fair but efficient” scholarship and direction, quality control, and positive precedents and systemic changes necessary to insure that EOIR’s “once and future vision” of “through teamwork and innovation, becoming the world’s best tribunals guaranteeing fairness and due process for ALL” is finally realized. After four years or intentional degradation and movement in exactly the OPPOSITE direction by Sessions, Barr, and their “Miller Lite” cronies and toadies, it’s time for a change!

Obviously, the due-process-denying and demeaning (to both IJs and those seeking justice) “production quotas” and equally bureaucratic and bogus “performance work plans” should already have been revoked by Garland. They could replaced with a meaningful system of appellate supervision and judicial professional responsibility and training modeled on that of “real courts.” For example, check out the system used by the DC Court system to maintain professionalism, provide constructive feedback, and make recommendations for tenure decisions on judges, with both public and peer participation.

As the Third Circuit points out, high volume is not an excuse for sloppy work and denial of due process! The backlog can be slashed and justice restored, and even improved, while maintaining high standards of quality and implementing and enforcing best practices. EOIR indeed could become a “model progressive court system.” But, it’s going to take a new team of progressive judges and qualified progressive Administrators, folks with experience in the “horrors of today’s Immigration (not) Courts” and an unswerving commitment to due process and best practices to get the job done!

🇺🇸Due Process Forever!

PWS

07-16-21

☠️🤮⚰️DUE PROCESS MOCKED: UNDUE POLITICAL INFLUENCE IN IMMIGRATION COURT LEADS TO IMPROPER DENIAL OF LIFE-SAVING PROTECTION TO KIDS! — “Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.”

Unaccompanied immigrant minors wait on July 2, 2019 in Los Ebanos, Texas to be transported to a U.S. Border Patrol processing center after entering the U.S. to seek political asylum. John Moore/Getty Images

US immigration judges considering asylum for unaccompanied minors are ‘significantly influenced’ by politics

July 13, 2021 8.30am EDT

Authors

Daniel Braaten Associate professor of Political Science, Texas Lutheran University

Claire Nolasco Braaten Associate Professor, Criminology, Texas A&M-San Antonio

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The news over the past months has been saturated with stories about another “surge” of unaccompanied minors crossing the southern border of the U.S.

In March 2021, the number of unaccompanied minors apprehended in the U.S. reached an all-time monthly high of 18,890. This surpassed the previous monthly high of 11,681 in May 2019.

One question not addressed in many of these stories is: How many of these children actually receive asylum and are allowed to stay in the country?

The people who make those decisions are immigration judges. Their decisions are supposed to be based on whether these children have fears of being persecuted in their home countries and whether these fears are realistic.

But our research examining the period from early October 2013 until the end of September 2017 shows that these judges were influenced by factors outside of the case. Political factors such as ideology, political party of the president who appointed them and who was president at the time they decided the case significantly influenced whether these children were allowed to stay in the country.

Aside from political factors, immigration judges are also influenced by local contexts, such as unemployment levels, the number of uninsured children and size of Latino population in the places where they work.

Unaccompanied minors and asylum

Under U.S. law, an unaccompanied minor is a child under 18 years old who does not have lawful immigration status and no parent or legal guardian in the country who can provide care or custody.

Unaccompanied minors cannot be refused entry or removed from the country without legal process because of the 1993 Supreme Court case Reno v. Flores. In 2008, new legislation allowed asylum officers to grant these children asylum at the U.S. border. If the asylum officer denies asylum to the minor, the minor may request asylum before an immigration judge.

Because immigration judges are not appointed under Article III of the Constitution, as federal judges are, they have less independence than those federal judges. According to current Justice Department rules, immigration judges are appointed by the attorney general and they act as his or her delegates.

Political pressure

In order to learn what factors affect the grant of relief to unaccompanied minors, we obtained data on their asylum applications from Oct. 2, 2013 to Sept. 29, 2017, covering over 10,000 cases from 280 different judges in 46 counties and 27 states.

Only 327 of the unaccompanied minors actually received asylum; 2,867 were deported and 455 chose to voluntarily leave.

An additional 6,645 children were allowed to stay in the country. Of those, 3,589 had their case administratively closed, which allows judges to suspend the case indefinitely without hearing and deciding on it. The remaining 3,056 had their case terminated, which means that the case against the child was dismissed.

The fate of unaccompanied minors entering the US

A review of about 10,000 asylum applications for unaccompanied minors from October 2, 2013 to September 29, 2017 found the majority of the minors were allowed to stay (in green), most because a judge either dismissed or indefinitely suspended the case against them. Only 327 were granted asylum.

Bar charts grouped to show significantly more unaccompanied minors were allowed to stay.

2,000 cases

2,867

455

3,589

3,056

327

Removed

Voluntarily Departed

Administrative Closure

Case dismissed

Received asylum

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

We ran a statistical analysis of political factors that may influence immigration judges’ decision: judicial ideology, political party of the appointing president and whether the decision was made before or during the Trump administration.

Following previous research on immigration judge’s ideology, we determined a judge’s ideology by considering their prior work experiences. Based on this research, we determined that some experiences, such as working for immigration agencies, are associated with more conservative views on immigration and asylum issues.

Conversely, work experiences in an immigration or non-immigration-related nonprofit or academia are associated with more liberal views. Our analysis showed that immigration judges with more liberal judicial ideology were more likely to rule in favor of granting asylum to these children.

Judges’ ideology can influence asylum decisions

Immigration judges who are more liberal tended to allow unaccompanied children to stay in the U.S. more often, compared to more conservative judges. Ideology was determined from each judge’s prior work and ranges from 1-11, most conservative to most liberal.

Area chart showing how children allowed to stay rose with more liberal judges.

1

2

3

4

5

6

7

8

9

10

11

0

50

100%

Likelihood unaccompanied minor is allowed to stay

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

We also found that judges who were appointed by a Democratic attorney general were more likely to rule in favor of the minors.

Political party of attorney general who appointed the judge

Immigration judges appointed by Democrats were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. than those appointed by Republicans.

Bar charts showing judges appointed by Democrats were more like to allow unaccompanied children to stay in the U.S., but GOP-appointed numbers were also above 62%.

Republican

62.9%

Democratic

69.5%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Finally, statistical analysis showed that immigration judges were less likely to grant relief during the eight months of the Trump administration compared to the last three years of the Obama administration.

President at the time the case was decided

Immigration judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. during the Obama administration than during the Trump administration.

Trump

54%

Obama

67.7%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Why did politics and judges’ ideology play into their decisions?

We believe it’s because immigration judges are subject to political pressure from the president, indirectly, because they are appointed by the attorney general, who is also a presidential appointee and carries out the president’s policies and wishes.

Local environment

Pressure from the executive branch was not the only factor we concluded had influenced whether these children got to stay in the U.S. or were turned away. Aside from political and ideological values, judges may also have been influenced by their local contexts.

For example, we found that immigration judges in places with more Latinos were more likely to let these children stay. Conversely, immigration judges in states with lots of poor children were less likely to let these children stay than judges in states with relatively fewer poor kids.

Latino population in the county

In counties with larger Latino populations, judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. The horizontal axis shows the percentage of the county’s population that is Latino.

20% Latino

40

60

80

0

20

40

60

80

100% likelihood unaccompanied minor is allowed to stay

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Asylum decisions can be life-or-death matters. Although immigration judges consider the requirements of asylum law, they are also influenced by nonlegal factors when making decisions.

Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.

[The Conversation’s Politics + Society editors pick need-to-know stories. Sign up for Politics Weekly.]

Immigration

Asylum

US Supreme Court

Borders

Donald Trump

Obama administration

Unaccompanied minors

Trump administration

Political influence

President Barack Obama

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Republished under Creative Commons license.

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

Go to this link for the original article with pictures and graphs: https://theconversation.com/us-immigration-judges-considering-asylum-for-unaccompanied-minors-are-significantly-influenced-by-politics-160071

This article confirms two things I have said over and over:

Garland’s failure, to date, to replace the BIA with better qualified progressive judges with expertise gained by representing asylum seekers; plus
His “giveaway” of 17 critical Immigration Judge positions to those selected by “Billy the Bigot” Barr under badly flawed procedures;

will unquestionably cost some children and other refugees their lives. Immigration Judge positions are life or death — we need an Attorney General who treats them that way!

Immigration Judge appointments, particularly those at the appellate (BIA level), need to be treated by Democratic Administrations with the same care, seriousness, and strategy as Article III judicial appointments, perhaps more! Few Article III Judges, including the Supremes, affect more lives and have a bigger impact on America’s future than Immigration Judges.

The last two GOP Administrations “got” the negative power for destruction and dehumanization inherent in a “captive” court system that actively pursues misguided nativist policies and receives only sporadic supervision and attention from the Article IIIs. By contrast, the Obama Administration failed to “mine EOIR’s potential” for progressive due process advancements and building a corps of dynamic, courageous progressive judges.

So far, while perhaps exceeding the passively inept approach of the Obama Administration, the Biden Administration has also failed to achieve the radical, yet logical and obvious, reforms and decisive personnel actions necessary to undo the damage caused by the White Nationalist xenophobia of the Trump kakistocracy.

The Immigration Courts have the potential to become “model progressive courts” that could lead the way to better practices and more constitutionally and legally sound jurisprudence throughout the Federal Judiciary. Whether the Biden Administration grasps and acts boldly on that potential, or squanders it as past Democratic Administrations have done, remains to be seen.

But, that question is far from “academic.” The survival of our democratic republic is likely to depend to a great extent on whether the Biden Administration can bring in the progressive experts who finally will “get EOIR right!”

🇺🇸Due Process Forever!

PWS

07-16-21

⚖️5TH CIRCUIT BELATEDLY “OUTS” IJ AGNELIS REESE (NOW RETIRED) FOR 99.5% ASYLUM DENIAL RECORD — “We find it likely that a ‘reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.’” Inexplicably Garland & Co. Let Other “Asylum Deniers Club” Members Continue to Wreak Havoc On Asylum Seekers, Their Lawyers, & The Entire U.S. Justice System!🤮

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — As asylum seekers and their fearless advocates suffer and the Immigration “Courts” disintegrate, there appears to be no end to “Garland’s Miller-Lite Happy Hour” @ DOJ!

Dan Kowalski Reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/rare-ca5-stay-grant-singh-v-garland#

Rare CA5 Stay Grant: Singh v. Garland

Singh v. Garland

“Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party. The presiding immigration judge (“IJ”) denied his application, finding Singh not credible. The Board of Immigration Appeals (“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition. … Singh raises two principal arguments in his petition for review. First, he contends that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights. Second, he challenges the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims. … The IJ here [Agnelis Reese] denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. … … Given the accounts of multiple witnesses to the attacks on Singh, medical records, images of the attacks on his father, and witness testimony regarding the BJP’s continued pursuit of Singh, Singh has made the requisite showing that the totality of the evidence does not support the IJ’s credibility determination. The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel. … Accordingly, we GRANT Singh’s motion for a stay pending review of his petition.”

[Hats way off to Peter Rogers!]

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

So, if the 5th Circuit and a “reasonable man” could figure out this isn’t “justice,” by any stretch of the imagination, why on earth 1) can’t Garland do likewise, and 2) does he continue to have his lawyers defend this disgraceful nonsense and waste of taxpayer money? Reese has previously been “featured” in Courtside for her “Kafkaesque” approach to “justice” for asylum seekers. Several years ago, I spoke at a Louisiana State Bar CLE event where attorney after attorney shared their “horror stories” about Reese. Yet, she managed to last for more than two decades over four different Administrations, two Democratic and two Republican.

Thankfully for American justice, Judge Reese retired in 2020, after more than two decades of abusing asylum seekers and disgracing the Immigration Courts! But, she was by no means the only unqualified Immigration Judge who helped create disgraceful and illegal “Asylum Free Zones” in Immigration Courtrooms throughout America.

A number of members of the “Asylum Denial Club” remain on the bench @ EOIR. Outrageously, some of them were even “rewarded” with appointments to the BIA by the previous Administration!

Rather than swiftly moving to replace the BiA and then commencing a thorough, long overdue “housecleaning” of unqualified judges and managers at EOIR, Garland, Monaco, Gupta, and Clarke have dawdled as asylum seekers continue to be abused, mistreated, denied due process, and justice mocked at EOIR. A civil rights/racial injustice/due process crisis of gargantuan proportions is going on right under their noses, and they have done very little to acknowledge or address it!

Not to mention that under Garland’s lackadaisical leadership the Immigration Courts continue to build unnecessary backlog at “Trumpian” rates. It’s not like experts haven’t brought the grotesque injustices and defects of EOIR to the attention of the Biden Administration and Garland!

One might ask just what Garland and his top lieutenants are doing to earn their pay? The answer is “not much” to date from a progressive standpoint!

Experts and advocates should be “raising hell” with the Biden Administration about the deficient due process and racial justice leadership at the DOJ! American justice deserves better! Much better!

And, the other Circuit Courts (particularly the 11th Circuit) that have looked the other way at the biased decision-making and other unconstitutional travesties of justice going on in Immigration Court on a regular basis don’t look so good either!

🇺🇸Due Process Forever!

PWS

07-14-21

⚖️MATTER OF A-B- REMAND: Many More To Follow! — But, Without Progressive Reforms By Garland, Due Process, Fundamental Fairness, & Best Practices Will Remain Elusive!

Dan Kowalski reports on LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca6-on-honduras-social-group#

Daniel M. Kowalski

7 Jul 2021

social group

Honduras

matter of a-b-

asylum

Unpub. CA6 on Honduras, Social Group: u

Corea Escoto v. Garland (unpub.)

“Given the BIA’s repeated reliance on A-B-, briefing on the effect of A-B-’s overruling is necessary. We remand to the BIA to reconsider Corea’s asylum claim in the first instance, this time under pre-A-B- caselaw.”

[Hats off to Sally M. Joyner!]

$pastedGraphic_1.png$

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

Garland has failed to :

Get rid of the “Miller Lite Denial Club @ EOIR;”
Bring in progressive immigration experts at the BIA and the Immigration Courts;
Generate long-overdue positive precedents on granting asylum to those persecuted by domestic violence and other forms of gender-based persecution.

Consequently, these remands (of many cases that should have been granted years ago) are likely to be yet another “Aimless Docket Reshuffling” disaster. The BIA was “all over the place” on A-R-C-G- domestic violence cases even prior to Session’s racist, misogynistic, intellectually dishonest atrocity in A-B-. Without a better qualified, courageous, expert BIA committed to due process and positive precedents on how to efficiently recognize and grant “gender-based” asylum cases, the backlog-building, due-process-denying, equal-justice-eroding deadly farce known as “refugee roulette” @ EOIR will continue!🤮☠️

Tell Garland you’ve had (more than) enough. Fix EOIR with real progressive judges and competent judicial (not bureaucratic) administrators! 🇺🇸 Due Process Forever!

PWS

07-08-21

🏴‍☠️☠️⚰️👎🏽DOJ DISCONNECT: Garland Hits Pause Button On Trump/Barr 🤮 Kill-Fest, While Operating “Traffic Courts” That Can Impose The Death Penalty ⚰️ Without Due Process Or Impartial Judges!

In the strangely disingenuous world of Judge Garland’s DOJ:

This is unacceptable treatment of convicted felons:

Death Penalty
By Dave Granlund
Reprinted by license

But, this is “A-OK” treatment of those seeking asylum @ EOIR:

Star Chamber Justice — “Justice”
Star Chamber
Style

Pausing the Trump/Barr Federal killing spree makes sense. In addition to Garland’s “due process concerns,” there is the larger problem that the death penalty is unconstitutional under the 8th Amendment.

One would think that AG Garland’s concern for due process would extend to individuals being railroaded through his broken, biased, dysfunctional, due-process-denying Immigration “Courts” (that aren’t courts at all) who often face removal to places where they face abuse, torture, and/or death. Heck, at the border they are illegally removed without any process at all, as Judge Garland and his lieutenants look the other way. They might pretend not to see what’s happening. But, we see it!

Apparently, in Garland’s system due process is only a requirement for convicted felons, not for vulnerable individuals fighting for their lives in a process intentionally skewed against them. His is a system staffed largely with “Miller-Lite judges” selected by his two immediate predecessors who prided themselves on creating a “due process free zone” at EOIR and “partnering” with DHS Enforcement!

🇺🇸Due Process Forever,

PWS

07-05-21

☠️👎🏽BIA GOOFS UP ANOTHER CAT CASE IN 5TH CIR! — 4 Years, 3 BIA Decisions, 2 Circuit Remands, & Back To “Square 1” — What’s Missing? — Only Competence & Justice!

Four Horsemen — Gen. Garland continues to use “Miller Lite Mercenaries” against migrants. “The U.S. constitution states that our judicial system is a ‘separate but equal part’ to our democracy. But immigration courts have nothing to do with that.” — Tea Ivanovic, Immigrant Food
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-on-honduras-cat-state-involvement-guity-casildo-v-garland#

Daniel M. Kowalski

1 Jul 2021

torture

cat

Honduras

Unpub. CA5 on Honduras, CAT, State Involvement: Guity Casildo v. Garland

Guity Casildo v. Garland (unpub.)

“[T]he BIA has not addressed the question of the applicability of the color-of-law rule regarding state involvement in torture. … The parties agree that a remand is the best alternative where the BIA has made an unauthorized or inadequately supported factual finding on the likelihood of torture, thereby leaving unresolved whether the IJ failed to apply the rule-of-law theory of state involvement in torture. Accordingly, we conclude that the prudent course is to remand the case to the BIA. … We further order the BIA to remand the case to the IJ for a clear factual finding on the likelihood of torture and for the IJ’s clarification, if necessary, on the question of state involvement in light of the color-of-law rule. … PETITION GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS TO REMAND.”

[Hats off to Matthew Nickson!]

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

Congrats to Matthew Nickson! Getting justice for a migrant in the notoriously pro-Government 5th Cir. is no mean feat! Think of how much easier your job would be if AG Garland hired some “real judges” at EOIR — experts in immigration and human rights who have represented individuals in Immigration Court and who are committed to due process and fundamental fairness above all else!

When you’re out to stick it to Hondurans (actually all Northern Triangle migrants), regardless of facts or law, to please your sleazy White Nationalist political bosses in the Trump regime, bad things are going to happen.

Let’s not forget that the Trump regime entered into a totally corrupt and bogus “Safe Third Country” agreement with Honduras, probably one of the least safe countries in the Hemisphere with no functional asylum system at all. Given this level of overt political fraud by the “bosses,” I doubt that the regime would have appreciated BIA bureaucrats correctly finding that torture with government acquiescence is likely in Honduras.

Sure, these failures were before Garland took over. But, he has made little effort to date to either acknowledge and root out the deep corruption and anti-immigrant weaponization of the Immigration Courts or to address the inadequate “go along to get along judging” that was encouraged at EOIR. In plain terms, respondents did not get, and still do not get, qualified, fair, and impartial judges at EOIR to adjudicate their claims.

You have only to look at the comedy of errors and ineptitude at EOIR in this case “outed” by one of the most pro-Government Circuits in America to see the proof! That’s unconstitutional!

Remand after remand to “get it right” also “jacks backlog.” Just getting a case back on an Immigration Judge’s docket takes time and effort in a non-automated system with no e-filing and traditionally overwhelmed and demoralized staff. Instead of fixing “customer service” @ EOIR, the Trump kakistocracy invested in ludicrous, due-process-destroying “IJ Dashboards” to keep the quotas filled and the unconstitutional “nativist deportation railroad” moving. Yet, Garland, Monaco, Gupta, and Clarke pretend that none of these constitutional and civil rights absurdities, not to mention grotesque management fraud, waste, and abuse, happened!

Don’t stand for any of Garland’s dishonest “expedited dockets” which implicitly blame those seeking justice under law and their courageous lawyers for the ungodly mess he and his lieutenants inherited but have failed to address! And, “dedicated docket for asylum seekers” is just a euphemism for more backlog-building, due-process denying “Aimless Docket Reshuffling” and continuing mismanagement by Garland.

I’ll bet that qualified experts could cut the largely self-inflicted backlog by at least 50% in 90 days without stomping on anyone’s due process rights merely by administratively closing or terminating without prejudice hundreds of thousands of non-priority aged cases. Many of those could better be handled at USCIS.

It shouldn’t be this difficult to get an Administration that ran and got elected on a “reform” and “return to good government” platform to do the right thing here. But, it is! EOIR needs reform, including a new BIA and competent, expert judges who know asylum law, respect due process, and will treat migrants and their attorneys fairly, respectfully, and humanely. It’s not a “big ask!” So why is it “above Garland’s pay grade?”

🇺🇸Due Process Forever!

PWS

07-02-21

🇺🇸Due Process Forever!

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Dean Kevin Johnson reports for ImmigrationProf Blog:

Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

🇺🇸Due Process Forever!

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David Montgomery writes in the WashPost:

HISTORICAL ADDENDUM FROM HON. “SIR JEFFREY” CHASE:

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FROM SPLC:

🇺🇸⚖️Due Process Forever!

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David G. Savage & Maura Dolan report in the LA Times:

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Dan Kowalski Reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Dan Kowalski reports on LexisNexis Immigration Community:

Tell Garland you’ve had (more than) enough. Fix EOIR with real progressive judges and competent judicial (not bureaucratic) administrators! 🇺🇸 Due Process Forever!

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In the strangely disingenuous world of Judge Garland’s DOJ:

This is unacceptable treatment of convicted felons:

But, this is “A-OK” treatment of those seeking asylum @ EOIR:

🇺🇸Due Process Forever,

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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