🇺🇸😎BIDEN MOVES QUICKLY TO TAKE CONTROL OF USG — Hacks Out, Pros In @ EOIR & Other Key Agencies — Judge Tabaddor’s Appointment @ USCIS Sends Positive Message For Due Process, Good Government, & That “Courage Counts!”🦸🏻

 

Biden Team Rushes to Take Over Government, and Oust Trump Loyalists

https://www.nytimes.com/2021/01/27/us/politics/biden-government.html?referringSource=articleShare

David E. Sanger reports for the NYT:

WASHINGTON — When President Biden swore in a batch of recruits for his new administration in a teleconferenced ceremony late last week, it looked like the country’s biggest Zoom call. In fact, Mr. Biden was installing roughly 1,000 high-level officials in about a quarter of all of the available political appointee jobs in the federal government.

At the same time, a far less visible transition was taking place: the quiet dismissal of holdovers from the Trump administration, who have been asked to clean out their offices immediately, whatever the eventual legal consequences.

If there has been a single defining feature of the first week of the Biden administration, it has been the blistering pace at which the new president has put his mark on what President Donald J. Trump dismissed as the hostile “Deep State” and tried so hard to dismantle.

From the Pentagon, where 20 senior officials were ready to move in days before the Senate confirmed Lloyd J. Austin III as defense secretary, to the Voice of America, where the Trump-appointed leadership was replaced hours after the inauguration, the Biden team arrived in Washington not only with plans for each department and agency, but the spreadsheets detailing who would carry them out.

A replacement was even in the works for the president’s doctor: Dr. Sean P. Conley, who admitted to providing a rosy, no-big-deal description of Mr. Trump’s Covid-19 symptoms last year, was told to pack his medical kit. While all presidents eventually bring in their own doctor, Mr. Biden wasted no time bringing back a retired Army colonel, Dr. Kevin O’Connor, who was his doctor when he was vice president.

Mr. Biden had named nearly all of his cabinet secretaries and their immediate deputies before he took office last Wednesday, most of them familiar faces from the Obama administration. But the president’s real grasp on the levers of power has come several layers down.

. . . .

Ashley Tabaddor, a constant critic of the Trump administration as the former head of the union that represents immigration judges, will take over as chief counsel at U.S. Citizenship and Immigration Services, the federal legal immigration agency.

At the Justice Department — where morale was largely decimated and Biden administration officials are eager to begin reversing Trump policies on civil rights, immigration and police oversight — all of the department’s top incoming acting department heads are alumni, some of whom worked under multiple administrations.

Until Judge Merrick B. Garland is confirmed as attorney general, Monty Wilkinson, a longtime career employee who worked closely with Eric H. Holder Jr. when he was attorney general, is serving in an acting capacity.

The acting deputy attorney general is John P. Carlin, who ran the national security division of the Justice Department during the Obama administration. He is holding the office only until Lisa Monaco, who has worked closely with Mr. Carlin over the years, can be confirmed as deputy attorney general. She served as homeland security adviser under Mr. Obama and, during the Trump years, she and Mr. Carlin ran a group studying the hardest issues in cyberpolicy.

Much as the politicization of the Justice Department angered Mr. Trump’s critics, the neutering of the Environmental Protection Agency prompted outrage from progressives, and it is probably no surprise that the agency is already in the throes of transformation.

. . . .

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

Read the complete article at the link.

Trump spent his first week in office spouting lies about the size of his inauguration crowd and launching a White Nationalist assault on Muslim refugees. Biden came in with a detailed plan for governing America and is putting it into effect on multiple fronts notwithstanding the crises and absolute mess left behind by the defeated kakistocracy!

The Biden-Harris plan reflects three truths:

  • Government is a powerful force for the common good;
  • Most governing takes place at the “retail level;” and
  • Competence, honesty, and courage count.

The Tabaddor appointment is a powerful signal to civil servants who stand up for their rights and the rights of others. Judge Tabaddor undoubtedly is one of the most talented, dynamic, and capable leaders at any level of the Federal Judiciary. But, that didn’t protect her from the DOJ/EOIR bureaucracy.

Judge Tabaddor was bullied by EOIR management during the Obama Administration because she had been recognized as an outstanding Iranian American. She sued her tormentors and won a $200,000 settlement.https://www.npr.org/sections/thetwo-way/2015/11/03/454394225/government-settles-lawsuit-filed-by-iranian-american-judge

During the Trump regime, she led the effort of the National Association of Immigration Judges (“NAIJ”) to expose bias and political interference with judicial functions, gross mismanagement, disregard for due process, and suppression of First Amendment free speech by the DOJ/EOIR kakistocracy.

“Billy the Bigot” Barr & his toady McHenry punished the NAIJ by filing to “decertify” the union — a move to silence Judge Tabaddor and her her colleagues and deflect Congressional attention from the ongoing chaos and dysfunction the Trump DOJ had created in the Immigration Courts. 

Apparently, somebody on the Biden Team was paying attention to this travesty, recognized the grotesque abuses going on at the EOIR Clown Show🤡, and the courage and leadership shown by Judge Tabaddor in the battle for integrity and  “good government.”

So far, so good. Looks like the “EOIR Clown Show”  🤡 is finally “going to go” and be replaced with real judges and pros in judicial administration who will refashion it into a real, functioning, due-process-oriented, model court system that will compliment the legislative initiative to create an independent Article I U.S. Immigration Court of which we all can be proud. 

“Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all!” Still the “right vision.” And with the right judicial leadership and judges who are experts in human rights, immigration, and “applied due process” it can become a reality!

🇺🇸⚖️🗽Due Process Forever!

PWS

01-28-21

🌞😎DAWNING OF A NEW ERA — First Gibson Report of The Biden Presidency (01-25-21) Shows Potential For Returning Sanity, Humanity, Focus On Human Rights, Good Government To America While Highlighting Continuing Problems @ EOIR & Deficiencies @ Supremes! — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Judge Garland Must Take Notice & Fix This Outrageous Mess If He Doesn’t Want to Become Part of It! — There Will Be No “Grace Period” For The Continuing Abuses Of Justice @ Justice! — We Have A “Supreme Problem” In Our Failing Justice System!

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

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 19, 2021. NYC non-detained remains closed for hearings.

 

TOP NEWS

 

AILA: First 100 Days of the Biden Administration: Tracking executive actions and proposals.

 

Biden Took Eight Administrative Actions on Immigration. Here’s What You Need to Know

IAC: Here is a summary of eight immigration-related changes the new administration just implemented:

1. Scaling back Trump’s unchecked immigration enforcement.

2. 100-Day moratorium on most deportations.

3. The end of the Muslim and African travel bans.

4. Protecting people with DACA.

5. Expedited and extended access to green card processing for Liberians.

6. Pausing construction on the border wall.

7. Ending Trump’s unconstitutional census executive order.

8. Suspending new enrollments in the so-called “Migrant Protection Protocols.”

 

Biden EO: Early Calendar of Themed Days

White House: January 29: Immigration

1. Regional Migration/Border Processing EO : Directs creation of strategies to address root causes

of migration from Central America and expand opportunities for legal migration, while taking

steps to restore the U.S. asylum system by rescinding numerous Trump Administration policies

2. Refugee Policy EO (tent.) : Establishes the principles that will guide the Administration’s

implementation of the U.S. Refugee Admission Program (USRAP) and directs a series of actions

to enhance USRAP’s capacity to fairly, efficiently, and security process refugee applications

3. Family Reunification Task Force EO : Creates task force to reunify families separated by the

Trump Administration’s Immigration policies

4. Legal Immigration EO : Directs immediate review of the Public Charge Rule and other actions

to remove barriers and restore trust in the legal immigration system, including improving the

naturalization process

 

Texas sues Biden administration over 100-day deportation ‘pause’

WaPo: Paxton’s lawsuit claims the deportation freeze defies an agreement between Texas and DHS finalized Jan. 8 — less than two weeks before Trump left office — requiring the department to provide 180 days notice before making changes to immigration policy and enforcement practices. See also Bronx man set to be deported despite 100-day moratorium, attorney says (flight canceled following advocacy) .

 

Biden is starting to roll back Trump’s “Remain in Mexico” program

Vox: The Biden administration announced that, starting Thursday, it will no longer enroll asylum seekers newly arriving on the southern border in a Trump-era program that has forced tens of thousands to wait in Mexico for a chance to obtain protection in the United States. The Homeland Security Department urged anyone currently enrolled in the program, known as the Migrant Protection Protocols (MPP) or colloquially as the “Remain in Mexico” policy, to “remain where they are, pending further official information from U.S. government officials.”

 

Trump blocks Venezuelans’ deportation in last political gift

AP: With the clock winding down on his term, U.S. President Donald Trump shielded tens of thousands of Venezuelan migrants from deportation Tuesday night, rewarding Venezuelan exiles who have been among his most loyal supporters and who fear losing the same privileged access to the White House during the Biden administration.

 

The U.S. Citizenship Act of 2021: Help for Asylum Seekers, U Visas, Military Aides

ImmProf: There’s a lot to unpack there. First: eliminating one-year deadline for filing asylum claims. Second: increasing “protections for U visa, T visa, and VAWA applicants.” Third: raising the cap on U visas for 10,000 to 30,000. Fourth: expanding protections for foreign nationals assisting U.S. troops. But see GOP Lawmakers Propose Major Immigration Restrictions.

 

Biden wants to remove this controversial word from US laws

CNN: Biden’s proposed bill, if passed, would remove the word “alien” from US immigration laws, replacing it with the term “noncitizen.”

 

Sen. Hawley moves to block swift confirmation for Biden’s homeland security pick

WaPo: Homeland security nominee Alejandro Mayorkas told senators he would carry out President-elect Joe Biden’s immigration overhaul while intensifying efforts to combat domestic extremism, during a hearing Tuesday that highlighted Republican opposition to his confirmation.

 

The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts

TRAC: While the Trump administration hired many new immigration judges and implemented a range of different strategies aimed in part at reducing the Immigration Court backlog, the backlog grew each month. Some of Trump’s changes in court operations arguably slowed case processing. However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security.

 

Bad conduct, leering ‘jokes’ — immigration judges stay on bench

SFChron: Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.

 

Vera Statement on Governor Cuomo’s 2021 State of the State Address

Vera: Gov. Cuomo reaffirmed his commitment to funding the Liberty Defense Project, which provides essential legal services for immigrants across New York State. This is excellent news for families facing separation, deportation and other horrors caused by the federal government’s actions.

 

LITIGATION/CASELAW/RULES/MEMOS

 

District Court Halts Most of EOIR Filing Fee Rule from Going into Effect

A district court judge issued a nationwide stay of the effective date of the 12/18/20 EOIR final fee review rule and a preliminary injunction to enjoin most of its implementation. The rule was set to go into effect on 1/19/21. (CLINIC, et al., v. EOIR, et al., 1/18/21) AILA Doc. No. 21011933

 

White House Issues Memo on Regulatory Freeze Pending Review

White House Chief of Staff Ronald A. Klain issued a memorandum for the heads of executive departments and agencies instituting a regulatory freeze pending review. AILA Doc. No. 21012090

 

DHS and DOJ Delay Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal

Advance copy of a document that will be published in the Federal Register on 1/25/21, delaying the effective date of the final rule “Security Bars and Processing,” which was scheduled to become effective on 1/22/21. The effective date is delayed until 3/21/21. AILA Doc. No. 21012143

 

DHS Acting Secretary Issues Memorandum on Immigration Enforcement Policies

Acting DHS Secretary Pekoske issued a memorandum directing DHS components to conduct a review of immigration enforcement policies, and setting interim policies for civil enforcement during that review. Beginning 1/22/21, DHS will pause removals of certain noncitizens ordered deported for 100 days. AILA Doc. No. 21012136

 

President Biden Issues Executive Order Revising Civil Immigration Enforcement Policies and Priorities

President Biden issued an Executive Order revoking EO 13768 of 1/25/17, and directing the DOS Secretary, the Attorney General, the DHS Secretary, and other officials to review any agency actions developed pursuant to EO 13768 and to take action, including issuing revised guidance, as appropriate. AILA Doc. No. 21012135

 

Presidential Proclamation on Ending Discriminatory Bans on Entry to the United States

President Biden issued a proclamation revoking EO 13780, PP 9645, PP 9723, and PP 9983. The proclamation directs the DOS secretary to direct embassies/consulates, consistent with visa processing procedures, including any related to COVID-19, to resume visa processing consistent with the revocations. AILA Doc. No. 21012002

 

President Biden Issues Executive Order on Promoting COVID-19 Safety in Domestic and International Travel

President Biden issued an EO, which, among other things, directs government officials to assess CDC’s order requiring a negative COVID test from airline passengers traveling to the U.S., and to take “further appropriate regulatory action” to implement public health measures for international travel. AILA Doc. No. 21012300

 

Presidential Proclamation Terminating Restrictions on Entry of Certain Travelers from the Schengen Area, the U.K., Ireland, and Brazil

In light of a CDC order issued on 1/12/21, President Trump issued a proclamation on 1/18/21, effective 1/26/21, removing travel restrictions from the Schengen Area, the U.K., Ireland, and Brazil. (86 FR 6799, 1/22/21) AILA Doc. No. 21011930

 

DHS Suspends New Enrollments in the MPP Program

DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) Program and will cease adding individuals into the program effective 1/21/21. DHS advised current MPP participants to remain where they are, pending further information. AILA Doc. No. 21012001

 

President Biden Issues Memorandum on Preserving and Fortifying DACA

On 1/20/21, President Biden issued a memorandum directing the DHS Secretary, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA. (86 FR 7053, 1/25/21) AILA Doc. No. 21012130

 

President Biden Issues Memorandum Reinstating Deferred Enforced Departure for Liberians

On 1/20/21, President Biden issued a memo deferring through 6/30/22, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who was under a grant of DED as of 1/10/21. (86 FR 7055, 1/25/21) AILA Doc. No. 21012131

 

President Biden Issues Executive Order Revoking Prior Presidential Actions Excluding Undocumented Immigrants from the Apportionment Base Following the Decennial Census

On 1/20/21, President Biden issued an executive order revoking prior presidential actions that sought to exclude undocumented immigrants from the apportionment base following the 2020 census. (86 FR 7015, 1/25/21) AILA Doc. No. 21012134

 

Presidential Proclamation Terminating Emergency with Respect to the U.S. Southern Border and Redirecting Funds Diverted to Border Wall Construction

President Biden issued a proclamation terminating the national emergency declared by Proclamation 9844, and continued on 2/13/20 and 1/15/21. The proclamation directs officials to pause work on construction on the southern border wall and to develop a plan to redirect funds and repurpose contracts. AILA Doc. No. 21012132

 

President Trump Issues Memorandum on Deferred Enforced Departure for Certain Venezuelans

On 1/19/21, President Trump issued a memo directing DHS and DOS to defer, with certain exceptions, for 18 months the removal of any Venezuelan national, or individual without nationality who last habitually resided in Venezuela, who is present in the U.S. as of 1/20/21. (86 FR 6845, 1/25/21) AILA Doc. No. 21012030

 

Supreme Court Vacates Decision of Ninth Circuit in ICE v. Padilla

The U.S. Supreme Court granted the petition for a writ of certiorari, vacated the judgment of the Ninth Circuit, and remanded for further consideration in light of DHS v. Thuraissigiam. (ICE, et al. v. Padilla, et al., 1/11/21) AILA Doc. No. 21011934

 

BIA Rules §58-37-8(2)(a)(i) of the Utah Code Is Divisible with Respect to the Specific Controlled Substance Involved in Statue Violation

The BIA ruled that §58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the specific “controlled substance” involved in a violation of that statute. Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021) AILA Doc. No. 21012237

 

CA1 Remands Asylum and Withholding Claims of Iraqi National Who Worked for U.S. Army During War

The court vacated and remanded the BIA’s denial of the asylum and withholding of removal claims of the petitioner, who feared that he would be subjected to harm on account of his work as a paid contractor for the U.S. Army during the war in Iraq. (Al Amiri v. Rosen, 1/11/21) AILA Doc. No. 21012039

 

CA4 Remands Plaintiffs’ Claim That DHS Unreasonably Delayed Adjudication of Their U Visa Petitions

Vacating in part the district court’s decision, the court held that the plaintiffs had pled sufficient facts to allege a plausible claim that DHS unlawfully withheld or unreasonably delayed adjudication of their U visa petitions. (Fernandez Gonzalez, et al. v. Cuccinelli, et al., 1/14/21) AILA Doc. No. 21012048

 

CA5 Finds Petitioner Failed to Show Due Diligence Where He Waited Eight Months After Lugo-Resendez to File Motion to Reopen

The court upheld the BIA’s conclusion that the petitioner did not demonstrate due diligence because he had waited approximately eight months after the court’s decision in Lugo-Resendez v. Lynch to file his current motion to reopen under INA §240(c)(7). (Ovalles v. Rosen, 1/6/21) AILA Doc. No. 21011943

 

CA5 Dismisses for Mootness After Finding Inadmissibility Was Not a Collateral Consequence of BIA’s Withholding-Only Decision

The court held that even if the BIA had erred in denying withholding of removal to the petitioner, inadmissibility was not a collateral consequence of the BIA’s decision, because the petitioner would still be subject to his February 2012 removal order. (Mendoza-Flores v. Rosen, 12/29/20) AILA Doc. No. 21011942

 

CA6 Says BIA Abused Its Discretion by Finding That No Exceptional Circumstances Justified Minor Petitioner’s Failure to Appear

The court held that, based on the totality of the circumstances, including petitioner’s young age and her inability to travel from New York to Memphis for the hearing, the petitioner had established exceptional circumstances justifying her failure to appear. (E. A. C. A. v. Rosen, 1/12/21) AILA Doc. No. 21012040

 

CA6 Says It Has Jurisdiction to Review BIA’s Ultimate Hardship Conclusion for Cancellation of Removal After Guerrero-Lasprilla

The court held that the BIA’s ultimate hardship conclusion is the type of mixed question over which it has jurisdiction to review after the Supreme Court’s decision in Guerrero-Lasprilla v. Barr, but found that petitioner failed to show the requisite hardship. (Singh v. Rosen, 1/7/21) AILA Doc. No. 21011944

 

CA7 Finds BIA Did Not Err in Denying Asylum to Mexican Petitioner Whose Family Was Targeted by Sinaloa Cartel

The court held that substantial evidence supported the BIA’s determination that the petitioner had failed to establish the requisite nexus between his fear of persecution from the Sinaloa Cartel upon return to Mexico and his family membership. (Meraz-Saucedo v. Rosen, 1/15/21) AILA Doc. No. 21012044

 

CA7 Remands Petitioner’s Request for Administrative Closure After Finding BIA Did Not Exercise Its Discretion According to Law

The court held that the petitioner was entitled to have his request for administrative closure considered as a proper exercise of discretion under law, including BIA precedents and the factors set forth in Matter of Avetisyan and Matter of W-Y-U. (Zelaya Diaz v. Rosen, 1/15/21) AILA Doc. No. 21012041

 

CA8 Affirms BIA’s Denial of Deferral of Removal to Somali Petitioner Who Feared Torture by Al-Shabaab for Minority-Clan Membership

The court affirmed the BIA’s decision denying petitioner’s request for deferral of removal to Somalia, finding that substantial evidence supported the IJ’s and BIA’s conclusions that he was unlikely to be tortured by Al-Shabaab due to his minority-clan membership. (Hassan v. Rosen, 1/15/21) AILA Doc. No. 21012045

 

CA8 Holds That DHS Was Permitted to Substitute CIMTs Charge for Immigration Fraud Charge as Basis for Petitioner’s Removal

The court held that, in seeking the petitioner’s removal, DHS could choose to rely on a claim that the petitioner had committed crimes involving moral turpitude (CIMTs), rather than on the alternative claim that she had committed immigration fraud. (Herrera Gonzalez v. Rosen, 1/4/21) AILA Doc. No. 21011945

 

CA9 to Rehear En Banc Case Involving Derivative Citizenship

The court ordered rehearing en banc and vacated its prior decision in Cheneau v. Barr, which held that the petitioner did not derive citizenship from his mother’s naturalization because his claim was foreclosed by the court’s precedent. (Cheneau v. Rosen, 1/6/21) AILA Doc. No. 21011948

 

CA9 Affirms District Court’s Denial of Government’s Motion to Terminate Flores Settlement Agreement

The court held that the district court had correctly concluded that the Flores Settlement Agreement was not terminated by new regulations adopted by HHS and DHS in 2019, and that the government did not show that changed circumstances justified termination. (Flores v. Rosen, 12/29/20) AILA Doc. No. 21011946

 

CA9 Holds That Petitioner Who Adjusted to Permanent Resident Under SAW May Be Removed at Present Time

The court held that, under the Special Agricultural Worker program (SAW), a noncitizen who was inadmissible at the time of his adjustment to temporary resident status may be removed after his automatic adjustment to permanent resident status. (Hernandez Flores v. Rosen, 12/30/20) AILA Doc. No. 21011947

 

CA9 Reverses and Remands Habeas Petition Denial Where Petitioner Claimed His ICE Arrest Was Retaliation for Protected Speech

Where the petitioner had filed a petition for a writ of habeas corpus under 8 USC §2241 arguing that his immigration arrest and re-detention was retaliation for his protected speech, the court reversed the district court’s denial of the petition and remanded. (Bello-Reyes v. Gaynor, 1/14/21) AILA Doc. No. 21012047

 

CA9 Upholds Denial of Asylum to Pakistani National Who Claimed He Feared Persecution from Taliban

The court held that the IJ had provided the pro se petitioner with a full opportunity to present testimony, and found the BIA did not err in concluding that petitioner’s description of generalized violence failed to meet his burden to show targeted persecution. (Hussain v. Rosen, 1/11/21) AILA Doc. No. 21012046

 

CA11 Says Substantial Evidence Supported BIA’s Finding That Petitioner Committed Fraud with Loss Amount over $10,000

The court upheld the BIA’s finding that petitioner’s Florida convictions for money laundering and workers’ compensation fraud were aggravated felonies because each conviction involved fraud in which the amount of loss to the victim exceeded $10,000. (Garcia-Simisterra v. Att’y Gen., 12/30/20) AILA Doc. No. 21012038

 

Notice of Proposed Settlement Regarding Asylum Applicants with Employment Authorization Who Were Denied Safety Net Assistance in New York

The NY County Supreme Court approved a proposed settlement in Colaj v. Roberts benefiting a class of asylum applicants with work authorization who were denied Safety Net Assistance between 8/7/14 and 11/21/17. Under the agreement, the applicants will get a certain amount of back benefits.AILA Doc. No. 21011935

 

DOS Notice Designating Cuba as a State Sponsor of Terrorism

On 1/12/21, DOS issued a notice designating Cuba as a State Sponsor of Terrorism. (86 FR 6731, 1/22/21) AILA Doc. No. 21012233

 

ICYMI: EOIR Issues Guidance on “Enhanced Case Flow Processing” in Removal Proceedings

EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130

 

DOS Provides Annual Immigrant Visa Waiting List Report as of November 1, 2020

DOS provided a report from the NVC showing the total number of immigrant visa applicants on the waiting list in the various family- and employment-based preference categories and subcategories subject to the numerical limit as of 11/1/20. The figures only reflect petitions received by DOS. AILA Doc. No. 21012232

 

EOIR Releases Policy Memo on Adjudicator Independence and Impartiality

EOIR issued a policy memo (PM 21-15) reiterating and memorializing EOIR’s policy regarding adjudicator independence and impartiality. The memo notes that it remains EOIR policy that adjudicator decisions should be based solely on the record before the adjudicator and the applicable law. AILA Doc. No. 21012033

 

Duckworth Asks President Biden To Prohibit Deportation Of Veterans And Strengthen Naturalization Process For Servicemembers

Duckworth:  Combat Veteran and U.S. Senator Tammy Duckworth (D-IL) is urging President Joe Biden to take immediate action to prevent the deportation of Veterans, repatriate deported Veterans, strengthen the military naturalization process and remove barriers to accessing VA care faced by Veterans living broad.

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, January 25, 2021

Sunday, January 24, 2021

Saturday, January 23, 2021

Friday, January 22, 2021

Thursday, January 21, 2021

Wednesday, January 20, 2021

Tuesday, January 19, 2021

Monday, January 18, 2021

 

 

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

A better Monday right off the bat, as I had predicted and hoped! But, the work has just begun! 

However welcome the Biden Administration’s immediate actions are, they have barely “touched the tip of the iceberg” on the human rights, civil rights, and human dignity abuses left behind by the just-departed kakistocracy.

There is a mess in the Federal Judiciary, from the lowest levels (EOIR) to the highest levels (Supremes). For example, the Supremes’ totally wrong-headed remand of ICE v. Padilla (described in Elizabeth’s report) shows a deficient Court that overtly fails to uphold the Constitution for asylum seekers and whose false and stilted jurisprudence continues to advance Jim Crow, White Nationalism, and Dred Scottification well into the 21st Century. Totally outrageous!

Let’s think about the Supremes in “real life” terms! The most vulnerable among us — asylum seekers who  are being openly abused by our Government while their lives are being trashed by our legal “system” get the shaft from El Supremos. But, yesterday the same Supremos issued corrupt traitor Prez Trump a “free pass” by going along with a corrupt scheme to “run out the clock” on “emoluments clause cases” that those seeking to uphold the rule of law had won below!

Suffering, death, and unfairness to the most vulnerable; free passes to the powerful and overtly corrupt! The problems with our failing justice system begin at the top and obviously have filtered down to places like EOIR where nobody expects any accountability for “going along to get along” with the Trump-Miller White Nationalist, racist, degradations of humanity!

Quoting Justice Sonia Sotomayor: “This is not justice!” Not even close!

Judge Garland must end the White Nationalist mess at EOIR by replacing (what passes for) administration and the BIA immediately, while quickly developing due process-expert-equal justice-human rights-diversity criteria and meaningful public participation in the judicial appointment process for the Immigration Courts. Then apply those criteria not only to new appointments, but also to retention decisions for the existing judiciary which is the product of a skewed “insider only,” “prosecutor and hard liner biased” defective system. 

Some Immigration Judges are well qualified, fair, and well respected; some are not. Judge Garland needs to figure out quickly who should serve, who shouldn’t, and who the best-qualified, fairest, and most universally respected “experts” are to create “the world’s best administrative judiciary” that will serve as a model for a better Article III Judiciary!

This is also the first step to reform throughout the Federal Judiciary all the way up to the failed Supremes. A functioning due-process-oriented, practical, progressive, independent Immigration Judiciary should become a source of better Article III Judges who handle high volume and promote best practices while actually improving due process and efficiency. A big winner for America!

A “model Immigration judiciary” (in place of the “Star Chambers”) will also be the centerpiece of a new independent legislative Article I Immigration Court that Judge Garland must push aggressively to insure that his reform work is institutionalized and is not destroyed by a future DOJ kakistocracy. 

As one of my esteemed judicial colleagues in the NAIJ said, immediately and radically reforming the current EOIR while pushing forward with Article 1 legislation requires the “ability to walk and chew gum at the same time.” 

Surely, Judge Garland, Vanita Gupta, Lisa Monaco and the rest of the incoming team at Justice have the demonstrated ability to do just that!

It’s up to all of us in the NDPA, the human rights and immigration advocacy community, the civil rights community, and the “good government movement” to keep pressure on Judge Garland and his team to fix EOIR and get the Federal Judicial reform movement moving at full speed. Raise hell if you have to, but don’t let this issue be delayed or “back burnered!”

This is not a “tomorrow” issue! Folks are suffering, dying, and the justice system is deteriorating — from the Supremes to  “America’s Star Chambers” every day that the current EOIR due process and fundamental fairness disaster remains unaddressed. Courageous lawyers who have fought to save our democracy from the “creeping and creepy kakistocracy” are being outrageously abused in “Star Chamber Courts” every day that the Biden Administration fails to take bold corrective action @ EOIR!

🇺🇸⚖️🗽Justice @ Justice Can’t Wait! Fix The EOIR Clown Show 🤡🦹🏿‍♂️ Now! Due Process Forever!

PWS

01-26-21

⚖️🗽IN ANOTHER DEFEAT FOR NATIVIST ANTI-ASYUM AGENDA @ EOIR, 4TH CIR. FINDS “UNREASONABLE” BIA’S ATTEMPT TO DEFINE PSG IN MATTER OF W-G-R- SO THAT NOBODY EVER QUALIFIES! — Amaya v. Rosen

 

Juan Carlos Amaya v. Jeffrey A. Rosen

Amaya v. Rosen, 4th Cir., 01-25-21, published

PANEL: THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

OPINION BY: JUDGE QUATTLEBAUM

DISSENT: JUDGE RICHARDSON

KEY QUOTE FROM MAJORITY:

Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG “former Salvadoran MS-13 members.”1 Appellant’s Br. at 13–16. For that reason, he argued to an immigration judge (“IJ”) that his removal from the United States should be withheld.2 After the IJ denied Amaya’s claims, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Amaya’s appeal, determining that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement. J.A. 4. Assuming we must afford Chevron deference to the BIA’s decision, our question is whether we think the BIA’s decision is reasonable. Because we do not, we grant the petition in part and remand on this ground.

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Great opinion by Judge A. Marvin QUATTLEBAUM! He’s a Trump appointee whom I’ve criticized in the past. But, his analysis is “spot on” in this case!

Perhaps the Federal Courts are finally catching on to the BIA’s disingenuous “scissors approach” to PSG. That’s used to “cut off” all PSG asylum claims no matter how meritorious. 

Here’s how it works. They incorrectly find that almost all “particularized” social groups fail the “social distinction” test. But, when you prove “social distinction,” they wrongly characterize the social group as too “amorphous” or “vague” to be particularized. In that manner, the BIA and many IJs can manipulate the law to reject proper “particular social groups” and keep their White Nationalist anti-asylum “handlers” at the DOJ happy, which also helps them retain their positions. 

It will be interesting to see how that works out for them if, as many of us have recommended, Judge Garland actually puts some Appellate Judges on the BIA who understand asylum law and start applying it fairly, correctly, and in accordance with due process?

In making EOIR appointments, the Obama Administration generally eschewed the “best and brightest” with expertise representing asylum seekers and applying the UN Convention and the Refugee Act of 1980 in accordance with their humanitarian intent, rather as ways to advance a restrictionist agenda of deterring asylum seekers by wrongfully denying their claims. After all, how many asylum seekers are fortunate enough to have a good lawyer like Abdoul Aziz Konare represent them in their asylum cases? Not very many!

No, the average asylum seeker, many in detention and without adequate access to counsel or research materials, gets railroaded out with gobbledegook like “Chevron deference,” too “amorphous,” not “socially visible” and citations to cases even experienced Federal Judges often don’t correctly understand. So, getting asylum tends to depend not so much on the strength of your claim (many of which should be pretty easily grantable unless the IJ is “programmed to deny” — the norm these days), but on your lawyer, your IJ, and whether you are fortunate enough to have access to a thoughtful Article III judge like Judge Quattlebaum in this case. He took the time to figure out the bogus nature of the DOJ’s standard “BS arguments.” 

Unfortunately, many Federal Judges would have just “punted” by accepting the “Chevron deference” argument for a “quick kill” without the need for much thought or analysis. After all, Court of Appeals Judges also like to “keep their dockets moving” and what easier victim to “throw under the bus” than an asylum applicant who is going to be deported to a place where he or she will be too busy fighting to stay alive to reflect on the deteriorating quality and lack of concern for fairness in the U.S. Judicial system. 

The Trump kakistocracy actually went a long way toward convincing the world that the once widely admired U.S. Justice system is now little more than a “third world sham” — controlled by nationalist politicos, programmed to reject, deny, dehumanize, and operated largely for the exclusive benefit of the rich white ruling class.

I hope that “Team Garland” will “End the EOIR Clown Show” 🤡 and restore integrity to our system. But, so far, it bumbles along chewing up and spitting out hope, humanity, and lives, while mocking any normal understanding of “justice” on a daily basis. Not something I’d want on my watch!

🇺🇸Due Process Forever!

PWS

01-25-21

🇺🇸⚖️NOTE TO JUDGE GARLAND AND VANITA GUPTA: MISOGYNY🤮 IS RUNNING RAMPANT IN THE EOIR “COURTS” — Soon To Be “YOUR” Courts! — The White Nationalist, Misogynist, Anti-Due Process “Clown Court Kakistocracy” 🤡🦹🏿‍♂️ Has Got To Go!

Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Tal Kopan reports for the SF Chronicle:

Bad conduct, leering ‘jokes’ — immigration judges stay on bench

Chronicle investigation: U.S. Justice Department lacks strong harassment oversight for judges

By Tal Kopan | Jan. 22, 2021

WASHINGTON — One judge made a joke about genitalia during a court proceeding and was later promoted. Another has been banned for more than seven years from the government building where he worked after management found he harassed female staff, but is still deciding cases.

A third, a supervisor based mostly in San Francisco, commented with colleagues about the attractiveness of female job candidates, an internal investigation concluded. He was demoted and transferred to a courtroom in Sacramento.

The three men, all immigration judges still employed by the Justice Department, work for a court system designed to give immigrants a fair chance to stay in the U.S. Every day, they hear some of the most harrowing stories of trauma in the world, many from women who were victims of gender-based violence and who fear that their lives are at risk if they are deported to their native countries.

These judges’ behavior toward women is not an isolated phenomenon in the immigration courts system. A Chronicle investigation revealed numerous similar instances of harassment or misconduct in the courts, and found a system that allows sexually inappropriate behavior to flourish.

In response to detailed questions before President Biden took office, the Justice Department declined to comment on specific allegations against judges, citing the privacy of personnel matters in some instances and the lack of written complaints in others, but said generally that it follows department procedures on misconduct. The Biden White House did not immediately respond to a request for comment.

Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.

And when such behavior has come to its attention, the department has in some instances simply transferred the offenders elsewhere.

The judges’ behavior appears to violate the department’s conduct policies and raises questions about the immigration courts’ ability to function fairly. Attorneys who have been the victims of harassment say they fear that if they try to hold judges accountable, they risk severe consequences, not only for themselves but for vulnerable clients.

“In the moment, you just know that you have to stay calm,” said Sophia Genovese, who has been an immigration attorney for three years and worked in the field of immigration policy for five. “You know if you do anything to piss him off, that’s going to ruin your reputation in his eyes. In that moment, am I thinking that I might be perpetuating sexism in the system? No, I’m thinking, I just need to get through this.”

She added, “If all you have to do is force a smile so that your client is not deported, the answer is obvious what practitioners are going to do.”

Michelle Mendez of the Catholic Legal Immigration Network, which provides legal representation to immigrants and helps attorneys report allegations of judicial misconduct, said lawyers face tremendous pressure not to call out judges’ bad behavior, even though they know ignoring it means it is likely to continue.

“An immigration judge might retaliate against the advocate by punishing her clients — and these are people fleeing persecution, rape and even death,” Mendez said. “It’s quite literally a Sophie’s choice that should never happen in the American legal system.”

The Trump administration did little to change the pattern, The Chronicle found, and in one case even promoted a judge who many women have said made them feel uncomfortable in open court and behind the scenes for years. Justice Department data shows the administration dismissed more complaints against judges than its predecessor.

It’s a problem that Biden’s administration has inherited. The very structure of the courts creates the conditions that allow bad actors to escape consequences, experts say. But that leaves Biden with a problem, they add: Does he reform the system to be independent of political influence, or does he use his political control over it to clean it up?

(Much more online)

Here’s a link to Tal’s complete article:

https://www.sfchronicle.com/politics/article/Sexually-inappropriate-behavior-runs-rife-in-15889003.php

Not to “plug too shamelessly” for one of my all-time favorite journalists, but for those of you who aren’t subscribers, “The Chron” is running a “99 Cent Special” on digital subscriptions right now, and having “full access” to Tal and her colleagues would be “cheap at twice the price!”

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Every day that McHenry and his EOIR gang — acolytes of the “Miller-Hamilton-Sessions Branch” of the”Waffen SS” (all notorious child abusers among other “crimes against humanity”) — remain in power and authorized to abuse migrants, asylum seekers, women, and attorneys is an ongoing national disgrace and a cancer upon our nation and our system of justice!

Great article, Tal! Thanks!

Disgusting problem! How would YOU like to be a woman refugee or female attorney appearing before this ongoing, evil EOIR Clown Show🤡🦹🏿‍♂️? Ties in completely with the continuing gratuitous attacks on Ms. A-B- and her lawyers by outrageously unqualified chauvinists like Jeffrey Rosen! 

What an ongoing national disgrace! The arrogance, audacity, and belief that there will be no accountability for abusing “the other” is both stunning and totally in line with four years of the Trump/Miller/Sessions/Barr/Hamilton/McHenry (surprise, all white males whose collective, genuine immigration and judicial “expertise” would fit in a thimble with room left over) kakistocracy and institutionalized abuses of migrants and their attorneys at EOIR and DOJ.

And many thanks to heroes like Michelle Mendez, Sophia Genovese, and other courageous members of the NDPA, and many “Knightesses” of our Round Table of Former Immigration Judges for having the courage to speak out in so many different and effective ways about the ongoing abuses inflicted by EOIR!

We must keep fighting and publicizing until these abuses end, and justice is restored to this ludicrously abusive, biased, openly misogynistic, anti-asylum, anti-due-process, and intentionally dehumanizing system.

The solution to the “problem” posed in Tal’s last sentence is not rocket science! 

There is nothing wrong with using Executive authority to get rid of the kakistocracy, putting in experts and widely respected “due-process warriors and warrior-queens” as judges and judicial administrators, and giving them independence to reform and reformulate every aspect of this totally broken system and the disgraceful anti-migrant jurisprudence it has spawned. Get rid of the “deadwood” (or worse), put the right folks in charge, and then trust them to solve judicial problems without political interference. That’s how any “real” independent court system works, for Pete’s sake! 

That certainly can and should include a new “merit selection system” for Immigration Judges that values immigration scholarship, human rights expertise, experience representing migrants and asylum seekers in Immigration Court, courage to oppose abuses, diversity, and a demonstrated lifetime commitment to due process and equal justice under our Constitution for all persons in the United States! 

Over time, every judge currently in the system should be required to re-compete for their job under the new merit system. That system must be open, transparent, and involve public input in the selection process. (Unlike the current, largely closed, system designed to favor prosecutors and other government attorneys, and which has produced a remarkably, shockingly non-diverse, non-expert, and non-representative “judiciary,” particularly in light of the communities most involved in, and affected by, the Immigration Court process).

Those incumbent judges who have demonstrated a commitment to guaranteeing fairness and due process for all should have no trouble being retained. But, those who have carried out the departed regime’s “dump on asylum seekers and their lawyers program” should and will be removed and replaced by better-qualified judges. Human lives simply are too important to be at the mercy of bad judges — and, without knowing exactly how many, there are some “bad judges” operating  in the EOIR system!

Remove the Clown Show🤡🦹🏿‍♂️☠️! Put Michelle, Sophia Genovese, and/or other leading members of the NDPA in charge of EOIR & the BIA and let them solve the problems! Empower them to root out the “bad actors” (including members of the “90% Asylum Denial Club” — some disgracefully ensconced at the BIA) in the judiciary, support reform of the process and the law without interfering with judicial independence, then get 100% behind the legislative push for an Independent Article I Immigration Court with expert, due-process-committed, diverse, courageous judges! 

There are hundreds, perhaps thousands, of well-qualified lawyers in the NDPA out there who could solve these pressing problems!

Stay tuned! Courtside will have lots to say about this until somebody in the Biden DOJ takes notice and solves the problem! The Clown Show has got to go!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

 I hear the cries of pain from those subjected to this degrading and entirely unnecessary national disgrace! It’s an affront to our Constitution, human dignity, and our entire justice system!

Thanks, Tal, Michelle, Sophia, and others for all you do, and due process 🇺🇸🗽⚖️ 🧑🏽‍⚖️ forever!

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle
Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)
Knightess
Knightess of the Round Table

PWS

01-22-21

⚖️👨🏻‍⚖️🧑🏽‍⚖️STATING THE OBVIOUS: “Independent” Judges Don’t Need Five Pages Of BS From A Glorified Court Administrator To Tell Them What Independence Means! — The PR Con Job & Gross Waste Of Resources On Attempts To “Butt Cover” For The Last Four Years Of Disgraceful Political Interference & Anti-Immigrant “Weaponization” At EOIR Continues — Judge Garland Must Put An End To This Harmful & Disingenuous Nonsense!

 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.justice.gov/eoir/book/file/1356761/download

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Hit the link and see for yourself the type of bureaucratic doublespeak and nonsensical gobbledygook your tax dollars are funding while EOIR continues to fail miserably at its one true mission: guaranteeing due process and fundamental fairness to asylum seekers and other migrants. In that, they have failed by any reasonable measure.

Just ask any lawyer who has had the misfortune to appear in behalf of an individual client before this misdirected mess! Indeed, some ICE lawyers are probably none-too-happy about the sometimes life-threatening, often incoherent, and health-endangering “Clown Show”🤡 they regularly face in the EOIR “court” system!

Stuff like this is an “In your face” to Judge Garland and the Biden Administration. They are the actions of out of control bureaucrats who believe they are above accountability!

Can you imagine the Director of the Administrative Office for U.S. Courts writing a five-page “policy memorandum” to Chief Justice Roberts and the rest of the Article III Judiciary reminding them of what “independence” and “impartiality” mean and directing them to contact their “supervisors” if they had questions about their judging?

The EOIR Clown Show🤡🦹🏿‍♂️ has got to go! There are plenty of well-qualified experts out there who could get this parody of a court system fixed! None of them happen to work at EOIR Headquarters right now! And, while independent judges might need a local chief judge to “lead by example” (reference, President Biden) and direct the administrative functions of the clerk of court, they most certainly do not need “supervisory judges” or a bloated, yet highly inept, bureaucracy to fairly and impartially judge the cases coming before them.

🇺🇸⚖️🗽Due Process Forever!

PWS

01-21-21

🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

A Parting Shot At Women

As the Trump Administration comes to an end, let’s remember how it began.  On the day following the inauguration, millions participated in Women’s Marches around the world.  There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.

It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence.  That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated.  The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound.  The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.

The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection.  Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.

There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-.  Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below.  But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers.  As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.

So what does the new decision of the recent Deputy Transportation Secretary say?  It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.

As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection.  The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.

I’m not sure of the need for what follows on the topic.  Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available.  Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap.  Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.”  No court has ever said that it was.  Let’s move on.

The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established.  This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father.  The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.

Our laws recognize that persecution can arise for multiple reasons.  A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm.  The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”

In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm.  Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store.  But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted.  This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed

In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction.  The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family.  The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.

I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice.  The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable.  I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political.  I’m not sure what jumps out in that example as evidence of animus towards the family itself.  How would one apply the Romanov test to anyone ever appearing in Immigration Court?  By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.

Of course, this is just my humble opinion.  The assistant Transportation czar feels differently.  Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”

I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference.  Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied.  (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).

But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference.  It is instead a legal standard not specific to asylum or immigration law.

For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity.  In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes.  In determining nexus, the Court stated:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context.  What would give an Acting Attorney General the authority to hold otherwise?

A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.

However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required.  The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.

Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1  While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test.  The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.”  This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive.  Perhaps the author required more than three weeks at the Department of Justice to understand this.

I write this on the last full day of the Trump presidency.  Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.

Note:

1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.  See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).

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

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.

Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team. 

The Clown Show🤡🦹🏿‍♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹

🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!

And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”

“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!

Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿‍♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮

PWS

01-20-20

⚖️🗽🇺🇸SLAVIN, BENÍTEZ, KOWALSKI, SCHMIDT SPEAK OUT ON BROKEN COURTS — Yilun Cheng Reports For “Borderless Magazine”

 

fl-undocumented-minors 2 – Judge Denise Slavin, former executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel — Judge Slavin is a member of the Round Table of Former Immigration Judges
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Me
Me
Yilun Cheng
Yilun Cheng
Writer
PHOTO: Twitter

https://borderlessmag.org/2021/01/13/for-undocumented-immigrants-a-shot-at-lawful-residency-requires-risking-it-all/

From “For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All” by Yilun Cheng in Borderless Magazine:

. . . .

The risk has become even higher in recent years as the Trump administration filled the immigration court system with hardline judges, according to Paul Schmidt, a former judge at the U.S. Immigration Court in Arlington, Virginia. For years, legal groups have urged the government to hire judges from diverse backgrounds to guarantee fairness in the courts, but the situation has only deteriorated in recent years, Schmidt said.

. . . .

“The Obama administration was just negligent,” Schmidt said, suspecting that former president Barack Obama left dozens of vacant immigration judgeships when he left the White House. “The new administration got a chance to fill those positions with a far-right judiciary.”

. . . .

“It’s very much a law enforcement-oriented and not a due process-oriented judiciary,” Schmidt said. “It’s just a bad time to be an individual with a case in the immigration court right now, with a bunch of unsympathetic judges, political hacks pulling the strings, and inconsistent COVID policies.”

. . . .

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Read Yilun’s full article at the link.

In the article, my friend and Round Table 🛡⚔️ colleague Judge Denise Slavin gives an excellent description of how “Aimless Docket Reshuffling” operates in a bogus “court” system run by political hacks with enforcement (and in the defeated “regime” racist) motivations.

“Ready to try” cases, many of which could be granted or should be closed, are shuffled off to the end of the docket, some without any notice on the day of trial when the respondent, his or her lawyer, and often witnesses who have taken the day from work arrive only to find out that their case has been “orbited” into the “outer space” of the EOIR backlog. 

Meanwhile, cases of individuals who haven’t had time to get lawyers or been granted the preparation time required by due process are put at the front of the docket to make denial of their cases easier for “judges” who have been told that they are basically functionaries of DHS enforcement. Sometimes, the very same lawyers who have had their years-old prepared cases arbitrarily reset to oblivion are then improperly pressured and required to go forward with cases they haven’t had a chance to properly prepare or document. 

Often, individuals whose cases are improperly “accelerated” recieve inadequate notice, resulting in carelessly issued, illegal “in absentia” orders that could result in improper removal or at least require heroic efforts by lawyers to get the case reopened and restored to the docket. Meanwhile, the bogus “no-show” statistics caused by the Government’s improper actions are used to build an intentionally false narrative that asylum seekers don’t show at their hearings.

The truth, of course, is the exact opposite: When given a chance to get competent representation and when the system is explained to them in understandable terms, asylum seekers show up for the overwhelming majority of their hearings, regardless of the ultimate result of  their cases.

As cogently studied and stated by highly-respected “practical scholar” Professor Ingrid Eagly of UCLA Law and her colleague UCLA empirical researcher Steven Shafer, in a recent published study:

Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction.

 

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9695&context=penn_law_review

Professor Ingrid Eagly
Professor Ingrid Eagly
UCLA Law
PHOTO: Twitter

I’d be willing to bet that at least an equal number of individuals with in absentia orders are illegally deported because they aren’t knowledgeable enough to reopen their cases, or their reopening motions are wrongfully denied but they lack to resources to pursue appeals, which often involve prolonged periods of dangerous and abusive detention.

Obviously, an Administration actually interested in solving problems (presumably “Team Garland”) would “can the false narratives and bogus enforcement gimmicks” and concentrate on getting asylum seekers represented and increasing and raising the quality of judicial review of detention decisions. The regime’s immigration kakistocracy, of course, has moved in exactly the opposite direction.

Cooperation and coordination with the private, often pro bono, bar, essential to any well-functioning court system, has become non-existent. In fact, it is actively discouraged by DOJ politicos and their “management toadies” at EOIR, who often have mischaracterized the  private bar as “the enemy” or out to “game” the system. Perversely, of course, the exact opposite is true. The regime’s immigration kakistocracy has tried over and over to use illegal methods and bogus narratives to illegally and unconstitutionally “game” the system against legitimate asylum seekers and their hard-working attorneys (actually, the only “players” in this sorry game trying to uphold “good government” and the rule of law.)

As a result, the only way for the private bar to be heard is by suing in the “real” Article III Federal Courts. This has resulted in a string of injunctions and TROs against EOIR and DHS misconduct, illegal regulations, and unlawful policies throughout the country, further adding to the chaos and inconsistencies. It also has clogged the Federal Courts with unnecessary litigation and frivolous, often disingenuous or unethical, “defenses to the indefensible” by DOJ lawyers.

This is how a dysfunctional “court system” that actually is a veneer for out of control enforcement and institutionalized racist xenophobia builds backlog. The corrupt “leaders” of this dysfunctional and unconstitutional mess then blame their victims for the delays caused by gross Government mismanagement. In turn, they use this “bogus scenario” to justify further unconstitutional restrictions of immigrants’ rights, due process, and judicial independence.

It’s a “scam” of the highest order! One that actually harms ☠️ and kills ⚰️ people, harasses lawyers, undermines the rule of law, and wastes taxpayer resources. One that has brought disgrace upon the DOJ and undermines the entire U.S. Justice system🏴‍☠️. One that Judge Garland and his incoming team at the DOJ must immediately end and totally reform, while holding accountable those responsible for this gross miscarriage of justice, fraud, waste, and abuse.

This is not “normal Government” or a question of “differing philosophies.” It’s outright fraud, intentional illegality, abuse of Government resources, and instititutionalized racism. It must be treated as such by the Biden Administration.

⚖️🗽🇺🇸Due Process Forever!

PWS

01-18-21

⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️🇺🇸MUST-READ FOR TEAM GARLAND @ DOJ: ABA COMMISSION ON IMMIGRATION JOINS CALL FOR INDEPENDENT ARTICLE I IMMIGRATION COURT, MAJOR DUE PROCESS REFORMS, END OF WHITE NATIONALIST KAKISTOCRACY @ EOIR! 

Two distinguished Members of the Round Table of Former Immigration Judges serve on the Commission:

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member, Round Table of Former Immigration Judges
Honorable Lisa Dornell
Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges, PHOTO: CNN
Knightess
Knightess of the Round Table

KEY QUOTE FROM REPORT:

The Executive Branch should work with Congress to establish, through legislation, an immigration court system independent of any federal agency, both at the trial and appellate level. In the ABA’s view, any major court system restructure should have the following goals:

2

American Bar Association • Achieving America’s Immigration Promise

(1) Independence – Immigration judges at both the trial and appellate level must be sufficiently independent and adequately resourced to make high-quality, impartial decisions without improper influence, particularly influence that makes judges fear for their job security;

(2) Fairness and perception of fairness – The system must actually be fair, and it must appear fair to all participants;

(3) Professionalism of the immigration judiciary – Immigration judges should be talented and experienced lawyers representing diverse backgrounds; and

(4) Increased efficiency – An immigration system must process immigration cases efficiently without sacrificing quality, particularly in cases where noncitizens are detained.

READ THE COMPLETE REPORT HERE:

ABA Achieving America’s Immigration Promise Final 1.13.21

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

As the calls for immediate EOIR reform grow, so does the sense of urgency for those vulnerable individuals (and their courageous, badly abused lawyers) caught up in the current unfair, biased, dysfunctional, and disgracefully misdirected and mal-administered Immigration Courts. 

Notably, EOIR “management” has continued its unseemly race to implement a racist, White Nationalist, anti-asylum, anti-lawyer agenda right up until the end! Their latest unlawful regulations were immediately and emphatically enjoined by several Federal Courts. 

EOIR has totally screwed up the Immigration Courts by piling up an avoidable backlog that greatly exceeds 1.1 million cases, largely by scheming to deny cases that could be granted, retaining cases that should be closed on their artificially bloated docket, selecting unqualified judges without expertise in immigration, human rights, and due process, and arbitrarily changing priorities and “churning” cases (“Aimless Docket Reshuffling”). They have then had the gutless audacity and intellectual dishonesty to attempt to shift the blame for their gross management and squandering of public resources to their victims: the individuals denied due process and fair hearings and their lawyers!

Additionally, EOIR’s continuing efforts to abuse asylum seekers and their lawyers through illegal and immoral regulations, and DOJ attorneys’ equally unethical “defense of the indefensible,” has continued to waste the time of the Article III Courts. It was obvious that these latest regulations would undermine the incoming Biden Administration’s pledge to reinstate due process and that they were illegal from the “git go!” 

This type of arrogantly “in your face Biden, Garland, democracy, and humanity” approach deserves immediate reputation, revocation, and removal of these responsible for the last, disgusting gasps of the “EOIR Clown Show!”🤡 It also demands that some action be taken to deal with the unethical DOJ lawyers 🦹🏿‍♂️🤮who have continued to “press this mess” before the Federal Courts. 

A Federal paycheck does NOT exempt lawyers from ethical codes nor is it a license to clog the courts with a frivolous, invidiously intended civil litigation “strategy” designed to “wear down and exhaust” those private, largely pro bono or low bono, lawyers defending due process and the rights of the most vulnerable among us. In civil litigation, the USG does NOT have either a right or an obligation to defend an illegal racist agenda of invidious actions. 

The disgraceful performance of all too many parts of the DOJ over the past four years must never, ever be repeated! This is a real, festering problem that “Team Garland” can’t afford to ignore as it takes the helm at the broken and dysfunctional DOJ that has become an actual threat to our democracy and our system of justice and an overt mockery of legal ethics. 

Judge Garland, please end the “EOIR Clown Show!” 🤡🦹🏿‍♂️☠️🤮👎🏻🧹🪠 NOW!

⚖️🗽🇺🇸👍🏼Due Process Forever. The “EOIR Clown Show,” 🤡🦹🏿‍♂️🏴‍☠️Never! 

PWS

01-17-21

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Two most recent recent rebukes, courtesy of Dan Kowalski at Lexis-Nexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca6-on-exceptional-circumstances-e-a-c-a-v-rosen

Immigration Law

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Daniel M. Kowalski

12 Jan 2021

 

  • More

CA6 on Exceptional Circumstances:

E.A.C.A. v. Rosen

“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Rachel NaggarHere is a link to the audio of the oral argument.]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-asylum-u-s-army-contractor-al-amiri-v-rosen

CA1 on Asylum, U.S. Army Contractor: Al Amiri v. Rosen

Al Amiri v. Rosen

“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”

[Hats off to J. Christopher Llinas!]

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

  • Congrats to all involved!
  • Think how much better this system would function with expert  judges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
  • At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
  • The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process. 
  • Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.” 
  • Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
  • In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
  • NOTE TO JUDGE GARLAND👨🏻‍⚖️: Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!

Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)

Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)

 

Greetings,

 

Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.

 

Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:

 

SIJS

·       “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”

·       FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”

 

Totality of the Circumstances

·       “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”

·       “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”

 

Exceptional Circumstances

·       “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”

·       “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”

 

Prima Facie Eligibility

·       “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”

 

Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.

 

Gratefully,

 

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿‍♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴‍☠️👎🏻

Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.” 

The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸

I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR! 

HINT TO JUDGE GARLAND: Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿‍♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!

The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!

The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.”  You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻.  “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!

And, it starts with better judges @ EOIR, which is entirely under YOUR control! An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts  —  all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!

We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!

🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿‍♂️ ☠️⚰️Never!

PWS

01-13-21

⚖️🗽🇺🇸NOTE TO JUDGE GARLAND: EOIR 🏴‍☠️🤡🦹🏿‍♂️IS THUMBING ITS COLLECTIVE NOSE AT YOU BY GOING FULL SPEED AHEAD ON THEIR WHITE NATIONALIST, ANTI-DUE-PROCESS AGENDA ☠️🤮⚰️DURING THE WANING DAYS OF THE WHITE NATIONALIST KAKISTOCRACY! — Due Process Mocking “Blueprint for Denying Legitimate, Constitutionally Required Continuances, Dumping On Pro Bono Attorneys, & Endangering Public Health” Latest Insult To Justice Coming From Falls Church Kakistocracy👎🏻!

 

 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Kangaroos
BIA Members Celebrate After Dismissing Appeal Of Arbitrary & Capricious Continuance Denial To Asylum Seeker, Thus Achieving “Death Without Due Process” The “Ultimate White Nationalist Deterrent” To Legitimate Refugees
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.justice.gov/eoir/page/file/1351816/download 

Check out the lies, false claims, bogus “reasoning,” and mis-statements in McHenry’s attempt to “redefine due process by encouraging judges to deny continuances to respondents.” Meanwhile, the real cause of many, perhaps most, “big time” delays and disorder in Immigration Court — “Aimless Docket Reshuffling” to accommodate improper DHS enforcement initiatives and politically motivated DOJ priorities, is swept under the rug and goes unaddressed. 

Here’s an example of some amazing nativist, White Nationalist legal gobbledygook put out by the “Tower Toadies:”

The general standard for a continuance is good cause, 8 C.F.R. § 1003.29. By statute, however, “[i]n the absence of exceptional circumstances, final administrative adjudication of [an] asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” INA § 208(d)(5)(A)(iii). “Exceptional circumstances” is a higher standard than “good cause.” PM 19-05, Guidance Regarding the Adjudication of Asylum Applications Consistent with INA § 208(d)(5)(A)(iii) (Nov. 19, 2018) at 2-3 (“A continuance does not automatically justify exceeding the 180-day timeline in INA § 208(d)(5)(A)(iii), however, because the statute’s ‘exceptional circumstances’ standard is higher than the ‘good cause’ standard for continuances.”). Thus, “if granting a continuance would result in missing the 180-day deadline, the Immigration Judge may only grant the continuance if the respondent satisfies both the good-cause standard of 8 C.F.R. §1003.29 and also shows the ‘exceptional circumstances’ required by INA § 208(d)(5)(A)(iii).” Id. at 2.

Translation: “Good cause” which is a constitutionally-based standard, actually means “exceptional circumstances” not “good cause” when dealing with asylum seekers, the most vulnerable among us, whose lives are in your hands. Therefore, the Constitution be damned, go ahead and deny the asylum applicant a legitimate continuance but claim that you had “good cause” for not finding “exceptional circumstances.” Oh, and while you’re at it, don’t bother to factor in the ongoing public health crisis and the lives of the individuals, attorneys, staff, and certainly not your own worthless life in reaching your pre-determined decision to deny a continuance. Denying asylum to refugees, for any reason, no matter how specious or disingenuous, outweighs human life and your meaningless oath to uphold the Constitution.

Sort of reminds me of “Gruppenfuhrer Rudy’s” famous “Truth isn’t truth” declaration to Chuck Todd on “Meet the Press!” Only in the kakistocracy is this type of absurdist “logic” considered normal and acceptable.

What a real judge might say: “Good cause” for a continuance exists where failure to grant one would make the proceedings fundamentally unfair or unduly impinge on a full and fair consideration of the respondent’s case. The need to grant a continuance to avoid a denial of constitutionally required due process is obviously an “exceptional circumstance.” This is especially true in dealing with applicants for asylum and others seeking protections from persecution and torture. Additionally, the ongoing public health crisis and the overriding need to protect the health and safety of those coming before you and your dedicated professional court staff should always be paramount in considering continuance requests. 

No legitimate court system in America is mismanaged in this grotesque, nonsensical manner without considering the input, or indeed the health, safety, and lives, of either the parties appearing before the court or the judges themselves! 

To be frank, Judge Garland, the EOIR Tower Kakistocracy is delivering you “the big middle finger”🖕 in advance. They are acolytes of the racist, White Nationalist, “myth based” xenophobic immigration agenda set forth by Stephen Miller and Gene Hamilton. As far as they are concerned, you and your “return justice and professionalism to Justice” agenda can “go pound sand.”

While the EOIR kakistocracy might be openly contemptuous of your incoming leadership, your supporters our here in the New Due Process Army (“NDPA”) are also aware of what’s happening. For better or worse, your commitment to and effectiveness in restoring justice will be judged initially on the number of hours, minutes, and seconds it takes you to oust the current Clown Show 🤡🦹🏿‍♂️☠️in Falls Church, including the failed and compromised BIA; replace them with professional, independent judicial administrators and real judges with expertise in immigration, asylum, and human rights and a nationally-recognized, unswerving commitment to due process, best practices, and practical scholarship in support of social justice.   

EOIR might not be the most “sexy” item on your incoming agenda, Your Honor. But, the fate of one of the largest, perhaps most important “Federal Court Systems” is probably the most important and consequential item on which your tenure ultimately will be judged. As all of us who have served the public know, many of our “achievements” that occupied so much of our time and attention in office are forgotten or disappear before the door closes behind us at the end of of our tenure. But, being the “Father of the Independent Immigration Court” 👨🏻‍⚖️⚖️🗽🇺🇸👍🏼😇— bringing in a group of experts to fix the current ungodly mess and then advocating tirelessly for Article I legislation — is the kind of lasting legacy of which you could be proud!

Judge Garland, you don’t want to “own” this national disgrace and mockery of our Constitution, rational, professional court administration, honest, competent civil service, and simple human decency — the obligations that we owe to our fellow humans. Please get some real judges and professional administrators over to Falls Church immediately, put the EOIR Clown Show 🤡🦹🏿‍♂️  out of its misery, 🧹🪠 and end the crimes against humanity☠️⚰️ they are visiting on the most vulnerable among us and their attorneys! History (as well as the NDPA) is watching!

Best wishes for a due process⚖️ and best practices 👍🏼filled tenure! Be remembered for the justice you have promoted and the evil ☠️🦹🏿‍♂️⚰️👎🏻you have resisted and eradicated!

🇺🇸⚖️🗽👍🏼👨🏻‍⚖️Due Process Forever!

PWS

01-12-21

⚖️🗽🇺🇸LATEST IMMIGRATION CERT GRANT PRESENTS OPPORTUNITY FOR BIDEN & GARLAND TO CONFESS ERROR, ACHIEVE UNIFORMITY, & START APPLYING “PRACTICAL SCHOLARSHIP” TO ADJUST STATUS OF MANY DESERVING LONG-TIME TPS HOLDERS WHO NOW QUALIFY FOR PERMANENT STATUS! — Will The Biden Team & The Garland Group @ DOJ Finally Tap A Better Qualified, Ethical Solicitor General With An Understanding Of, & Firm Commitment To, A Progressive Use Of Immigration Laws To Further Human Rights, Achieve Equal Justice, & Stop Promoting Unnecessary, Wasteful, Avoidable “Circuit Spits?” — After Four Years Of Unmitigated Kakistocracy,🤮☠️ DOJ & DHS Both Need Immediate “De-Clownification” 🤡🦹🏿‍♂️ !

https://lawprofessors.typepad.com/immigration/2021/01/supreme-court-to-review-adjustment-of-statustps-case.html

Kevin R. Johnson
Kevin R. Johnson
Dean
U.C. Davis Law

Dean Kevin Johnson reports @ ImmigrationProf Blog:

Yesterday, the Supreme Court granted certiorari in Sanchez v. Wolf, which presents the question under the Immigration and Nationality Act whether a Temporary Protected Status (TPS) recipient may adjust his or her status to that of a lawful permanent resident.  The Third Circuit held that TPS recipients were not entitled to adjust their status because TPS status was not an “admission,” under 8 U.S.C. § 1255.   The Third Circuit decision in Sanchez conflicts with the rulings of the Sixth and Ninth Circuits.

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

Here’s the government’s position in a nutshell: Notwithstanding the “plain language” of section 244(f)(4) which makes holders of TPS status eligible to adjust status in the U.S. if they meet all of the requirements for legal immigration (usually an an approved visa petition based on family ties or job skills), we have employed legal gobbledygook to refuse to adjust them. Thereby, we mindlessly keep them in “suspended animation” in the U.S. although they are long-time productive members of our society who have resided here with permission and work authorization and now meet our criteria for permanent immigration.

Sound pretty stupid? That’s because it is! I actually had this issue argued before me at the Arlington Immigration Court. Not surprisingly, the ICE Assistant Chief Counsel was unable to come up with any rational reason for circumventing the statutory language to achieve a nonsensical result that actually unnecessarily inflated the case backlog and served no legitimate government purpose. Needless to say, I ruled in the respondent’s favor.  

This isn’t “rocket science.” The new SG should join the petitioner’s counsel, JAIME W. APARISI (who regularly appeared before me in Arlington) and LISA S. BLATT (Williams & Connolly LLP) in agreeing that this issue was correctly resolved in the respondents’ favor by the Sixth & Ninth Circuits.

Then, ICE should ask the “new BIA” (real judges with immigration and human rights backgrounds appointed by AG Garland) to adopt this view nationwide.

Presto! 

  • No more bogus, contrived “circuit split;”
  • TPSers with adjustment eligibility can be taken out of EOIR’s ridiculous 1.1 – 1.5 million case backlog and returned to USCIS for routine adjustment of status;
  • Productive, long-time members of our society can become green card holders, get on the path to citizenship, and reach their full productive potential for both their benefit and the benefit of our society;
  • A win, win, win, instead of wasting time attempting to achieve an illegal, undesirable, yet fundamentally stupid, irrational, and counterproductive result;
  • And, unlike the stupidity going on now, it actually doesn’t require expenditure of funds (actually will save and perhaps even generate money from adjustment filing fees), major regulatory changes, new legislation, or protracted litigation. It’s “low hanging fruit” that the Trump immigration kakistocracy has let rot on the tree! Rational administration of the immigration laws can actually be quite efficient.

Is it any wonder that the EOIR bogus “court,” whose “guiding principle” is “always construe the law against the individual and in favor of DHS” is building uncontrollable backlog hand over fist, even with double the number of “judges?” This is “fraud, waste, and abuse” in action! 💸🤮 Not something I’d want to “own” if I were Judge Garland (which, of course, I’m not, and never will be)!

That’s how “practical scholarship” @ EOIR, DOJ, and ICE; smarter, better, more ethical progressive leadership at the DOJ; and the private/NGO/academic bar can work together to solve legal problems and stop wasting the time of the Federal Courts and the Supremes. Perhaps, with the time saved, the Williams Connolly LLP team can even take some more pro bono asylum cases, make the system work better at the “retail level,” and save some deserving lives of vulnerable individuals who have been mistreated by Miller and his neo-Nazi gang of thugs and the malicious incompetents now “running” EOIR (into the ground) in the process.

Not rocket science! But, it will require Judge Garland to bring in some members of the NDPA who actually understand the interrelated issues of immigration, human rights, due process, civil rights, equal justice, and practical problem solving to replace the current “Clown Show” 🤡🦹🏿‍♂️ at EOIR and the DOJ. (Not to mention, a comprehensive “de-clownification” 🦹🏿‍♂️🤡 of DHS by Secretary-designate Mayorkas and his team). All of those skills have been conspicuously absent from the Executive branch during the last four years of kakistocracy.

⚖️🗽🇺🇸Due Process Forever! Let the De-Clownifying 🤡🦹🏿‍♂️ Of Government Begin!

PWS

01-09-21

⚖️🗽JUSTICE: BIDEN TO NOMINATE U.S. CIRCUIT JUDGE MERRICK GARLAND 👨🏻‍⚖️ FOR AG — Mandate Will Be to Clean Up Unmitigated Legal, Ethical, Moral, Professional Disaster Left By Corrupt, Scofflaw Predecessors Barr & Sessions!

Judge Merrick Garland
Judge Merrick B. Garland
Official White House Photo
Public Realm

https://www.huffpost.com/entry/biden-attorney-general-merrick-garland_n_5fcea0d3c5b6636e09279a5b

Ryan J. Reilly reports for HuffPost:

President-elect Joe Biden is reportedly set to name Merrick Garland as his nominee for attorney general. If confirmed, Garland will take over a demoralized Justice Department that has abandoned bedrock principles and priorities, and come under withering attack from President Donald Trump’s administration.

Garland, a former federal prosector who lead the investigation into the Oklahoma City bomber, was nominated to the Supreme Court by former President Barack Obama following Antonin Scalia’s 2016 death. The Republican-controlled Senate refused to hold a hearing on his nomination for months, citing the presidential election. His pending nomination died in early 2017, after 293 days.

Garland will take over a Justice Department that Trump sought to weaponize against his political opponents and use as his personal law firm. Trump has fired or pushed out a number of key department officials, most famously former FBI Director James Comey. Trump appointees have used the Justice Department’s power in an overtly political fashion, even if they’ve resisted Trump’s desire to wield the department’s prosecutorial power as a blunt political weapon.

The nominee will face the challenge of determining how the Justice Department will approach potential criminal investigations into Trump and members of his administration. They will also face the prospect of rebuilding components like the Civil Rights Division, which abandoned key issues like police reform and focused on controversial religious liberty cases and attacks on college affirmative action programs. They’ll also have to deal with the long-term consequences of Trump’s attacks on the FBI, which has gutted Republicans’ confidence in the nation’s premier law enforcement organization. Biden’s nominee may also have to figure out how to combat a rise in right-wing domestic terrorism cases, some of which have been directly inspired by the outgoing president’s rhetoric against his political enemies and Muslims.

In addition, Biden’s nominee will have to deal with the delicate question of how to handle the ongoing tax investigation into the new president’s son, Hunter Biden, which is being led by the U.S. Attorney’s Office in Delaware. The nominee will have to reassure the American public that there won’t be political interference in the probe, perhaps by walling off the investigation. Republicans, the vast majority of whom were unconcerned with Trump’s repeated attempts to improperly interfere in Justice Department matters, might even call for a special counsel to assure the probe’s independence.

Former Attorney General Eric Holder, who had to rebuild the Justice Department after controversies during the George W. Bush administration, told HuffPost that Biden understands that he needs to give the attorney general “the space that he or she needs to restore integrity and the independence” of the Justice Department.

. . . .

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

Reread the rest of the article at the link.

I knew Judge Garland a little bit from the DOJ in the Carter Administration, eons ago.  He’s obviously in a totally different class than his sleazy, White Nationalist enabling predecessors in the defeated regime. It should be a welcome breath of professionalism, re-infusion of ethics, and re-establishment of due process, the rule of law, and simple common sense and human decency at the “disaster zone” DOJ.

I just hope that fixing the totally broken and dysfunctional Immigration Courts and restoring fairness, due process, and independence by bringing in immigration and human rights experts from the NDPA is high on his “to do” list! Only time will tell. But, potentially, he appears to be the right person to rebuild and transition the existing EOIR mess into an independent Article I Immigration Court. 

Obviously, unlike most of his predecessors, he understands what a “real court” should look like and how it should operate. 

With the results from Georgia coming in, today the long-sought objective of Article I seems closer than it has ever been.

⚖️🗽🇺🇸Due Process Forever! Time for Judge Garland 👨🏻‍⚖️ to end the “EOIR Clown Show”🤡!

PWS

01-06-06

ROUND TABLE 🛡⚔️ LEADS THE CHARGE FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT!⚖️🗽👩🏻‍⚖‍🤵🏾🇺🇸

Knightess
Knightess of the Round Table
Polly Webber
Hon. Polly Webber
US Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
Fiber Artist

Comments of the Round Table of Former Immigration Judges

Submitted to the House Judiciary Subcommittee on Immigration and Citizenship

Regarding the “Real Courts, Real Justice Act.”
January 3, 2021

This statement for the record is submitted by former Immigration Judges and former Appellate Immigration Judges of the Board of Immigration Appeals (BIA). Members of our group were appointed to the bench and served under different administrations of both parties over the past four decades. Drawing on our many years of collective experience, we are intimately familiar with the workings, history, and development of the Immigration Court from the 1980s up to present.

We hereby incorporate our Statement submitted to this Subcommittee on January 29, 2020, for its Hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” The statement sets forth the many ways in which the lack of safeguards in the Immigration Court system, specifically by positioning it within the Department of Justice, has resulted in extreme overreach by the executive branch over a system that historically has been the purview of Congress through its plenary power.

We applaud the efforts of Congresswoman Lofgren and the House Judiciary Subcommittee on Immigration and Citizenship for undertaking this historic task of creating an independent Immigration Court under Article 1 of the Constitution. Bringing together stakeholders and organizations with the proper expertise and foresight has resulted in a proposal with integrity and purpose, and a realistic possibility of long-needed reform.

The recognition that this Court needed to be independent from executive influence originated within the immigration judge corps as early as 1989. It took decades for the concept to mature to its current endorsement by nearly every important legal and social organization in the field, recognizing the importance of a system built on integrity and independence. Indeed, the creation of an Article 1 Immigration Court is finally a need recognized by the public at large.

The Time is Now

The Subcommittee is in a uniquely advantageous position to introduce this legislation at the inception of this historic session of Congress. There is nearly universal agreement that the whole immigration system needs a major overhaul. Beginning with the Immigration Court reflects a recognition that protection of the most vulnerable population, those appearing before the Court, should be addressed first.

The Round Table urges the Subcommittee to wrap up its due diligence and introduce this bill at the beginning of the new session. It is hoped that by submitting the bill, the Subcommittee will indicate that these issues are on its radar and the continuing executive rampages over the Court will cease.

DHS Rights of Appeal in an Article 1 Court System

Counsel to the Subcommittee specifically asked The Round Table to address whether under an Article 1 scenario the government should have the right to challenge determinations granting relief to immigrants in federal court. This question was presumably presented because under the present configuration, such appeals are disallowed. Our Round Table unanimously believes that given the independence the Court would enjoy under Article 1, both parties should have full right of appeal.

The historical inability of DHS to petition for review from Board grants of relief in part stems from the early days when Immigration Judges were still Special Inquiry Officers and the Court was part of INS, which in turn was part of DOJ. The Attorney General originally delegated only limited decision-making authority to the Board. All complex issues had to be referred to the Attorney General. INS could not appeal decisions made by AG delegates, who all worked for the same agency. Their recourse was to ask the AG to certify the appellate agency decision to himself/herself. The inability of the government to petition for review survived the reorganizations in 1983 and 2003. The difference we are seeking to make is removing the Court from the executive agency trappings. As a stand-alone Court, its parties should enjoy all the rights and duties that fall from that independence.

As INA § 242 is written, Judicial Review is limited to reviews of final orders of removal. Thus, the scope of review would need to be changed to allow the government to challenge grants of relief.

Contact with Questions or Concerns: Polly Webber, pawebber7250@gmail.com

Sincerely,

The Round Table of Former Immigration Judges

Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens (N.Y.) Wackenhut Immigration Courts, 1997-2013
Hon. Silvia Arellano, Immigration Judge, Florence and Phoenix, 2010-2019
Hon. Terry A. Bain, Immigration Judge, New York, 1994-2019
Hon. Sarah Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
Hon. Teofilo Chapa, Immigration Judge, Miami, 1995-2018
Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007 Hon. George T. Chew, Immigration Judge, New York, 1995-2017
Hon. Joan Churchill, Immigration Judge, Arlington, VA 1980-2005
Hon. Lisa Dornell, Immigration Judge, Baltimore, 1995-2019
Hon. Alison Daw, Immigration Judge, Los Angeles and San Francisco, 2006-2018
Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007
Hon. Noel Ferris, Immigration Judge, New York, 1994-2013
Hon. James R. Fujimoto, Immigration Judge, Chicago, 1990-2019
Hon. Gilbert Gembacz, Immigration Judge, Los Angeles, 1996-2008
Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013
Hon. Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004
Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018
Hon. Charles Honeyman, Immigration Judge, Philadelphia and New York, 1995-2020
Hon. Rebecca Bowen Jamil, Immigration Judge, San Francisco, 2016-2018
Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995-2018
Hon. Donn L. Livingston, Immigration Judge, Denver and New York, 1995-2018
Hon. Margaret McManus, Immigration Judge, New York, 1991-2018
Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
Hon. Laura Ramirez, Immigration Judge, San Francisco, 1997-2018
Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
Hon. Lory D. Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002
Hon. Susan G. Roy, Immigration Judge, Newark, NJ 2008-2010
Hon. Paul W. Schmidt, Chair and Appellate Immigration Judge, Board of Immigration Appeals, and Immigration Judge, Arlington, VA 1995-2016
Hon. Patricia M.B. Sheppard, Immigration Judge, Boston, 1993-2006
Hon. Ilyce S. Shugall, Judge, San Francisco, 2017-2019
Hon. Helen Sichel, Immigration Judge, New York, 1997-2020
Hon. Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019
Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010-2017
Hon. Gustavo D. Villageliu, Appellate Immigration Judge, BIA, 1995-2003
Hon. Robert D. Vinikoor, Immigration Judge, Chicago, 1984-2017
Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2016

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

Centuries of judicial experience represented here! As we say, “The
Time Is Now!”

Many thanks to Judge Polly Webber and her drafting team 🖋 for making this happen in such a timely manner!

Due Process Forever!⚖️🗽👩🏻‍⚖‍🇺🇸👍

PWS

01-03-21

⚖️(IN)JUSTICE IN AMERICA 🇺🇸— Why Justice Amy Coney Barrett & A Whole Bunch Of Other Federal Judges 👨🏻‍⚖️👩‍⚖️Who Have “Tuned Out” Humanity Don’t Belong On The Bench!

 

Dan Canon
Dan Canon Esquire
Civil Rights Lawyer, Law Professor, & Writer
Photo: Medium.com

https://medium.com/i-taught-the-law/i-argued-a-shooting-death-case-in-front-of-amy-coney-barrett-89b4165f7df2

Dan Canon writes on medium.com:

. . . .

Perhaps you’ve reserved some optimism for the whole “Barrett’s a mom and a Catholic so there must be some compassion there” thing. Sorry, but no. In her confirmation hearings, she spoke about how the George Floyd video was “very, very personal” for her family, and that she and her children “wept together” over what must have been the zillionth police murder in her history as a lawyer and mother. But her mentor, the late Antonin Scalia, seemed to think it was constitutional to put innocent people to death, despite his ultra-Catholicism. There’s no reason to believe that any sort of ideological consistency will prevail simply because of a judge’s familial status or bizarre metaphysical beliefs, and those factors made no apparent difference in Brad’s case.

Here’s where this gets complicated: In saying that being part of this horrendous decision should disqualify a judge from serving on the Supreme Court, by extension, I’m saying that damn near every federal judge is similarly unqualified. Almost none of them believe that cops should be held accountable for killing mentally ill people who call for help. This sort of thinking, in which cops are extended every benefit of every doubt, feasible or unfeasible, is the norm. Barrett didn’t even write the opinion in Brad’s case. It was written by a liberal judge who, like all her colleagues (of whatever political persuasion), was willing to write the police a blank check. That’s how our courts have operated for decades, and even in a post-BLM society, few of those in robes have the intestinal fortitude to do anything different.

So I am unmoved by Justice Barrett’s faith. I am unmoved by her status as a working mother of seven. I am particularly unmoved by her fake expression of sympathy for George Floyd, whose case she had nothing to do with, when she couldn’t spare any for the people who actually appear before her. I’m unmoved because I’ve seen so little compassion for grieving parents like Matt and Gina throughout my career, from any federal judge, let alone the Federalist Society drones who have lately taken over the judiciary. The basic inability to do what’s right for families like the Kings should be disqualifying. Not just for Amy Coney Barrett, but for the whole lot of ‘em.

A version of this originally appeared in LEO Weekly.

WRITTEN BY

Dan Canon

Civil rights lawyer and law prof, writing about the Midwest, the untold horrors of the justice system, and the ongoing battle between the law and humanity.

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

Read Dan’s complete article chronicling the tone-deaf mishandling of the police shooting death of a young man (his clients’ son) suffering from mental health issues.

This echoes what I’ve been saying on Courtside about the need for a “new breed of better, more progressive Federal Judges” who recognize the compelling human side of the law and why the Constitutional requirements of due process, equal protection, and fundamental fairness are there in the first place. They exist to protect individuals from tyranny and government overreach, not to be ignored, watered down, or woodenly distinguished away to protect government abusers from accountability or to further ideological agendas (primarily, but not exclusively those developed by right wingers) out of touch with the most vulnerable levels of humanity they are supposed to be serving.

Life tenure means that Coney Barrett and the rest of her unqualified colleagues will be around for a long time. But, change needs to start somewhere, now! 

In my experience, internal pushback, dissent, and constant confrontation of the complicit, complacent, judicial status quo with an aggressive implementation of due process, fundamental fairness, and a commitment to human rights and the best interpretations of the law can over time play a critical role in improving the law, changing results, and perhaps most important, saving lives!⚖️🗽👩‍⚖️🧑🏽‍⚖️👨🏻‍⚖️🇺🇸 That, not the hollow ideological agendas of Coney Barrett and others like her, is what “good judging” is really all about!

Intentional lack of compassion, empathy, and humanity (“Dred Scottification” of the “other”) have been themes of Trump, Miller, Wolf, Sessions, Barr, Rosenstein, Nielsen, Pompeo and the other neo-fascist toadies and moral misfits who have gleefully served the regime over the past four years. But, lack of overall resolve and courage to stand up and uniformly and authoritatively “just say no” to these toxic, anti-American, anti-humanity policies and to hold the “perps” accountable for their systemic lawlessness has plagued the Federal Judiciary, with a feckless and often downright complicit Supremes’ majority “leading” the way.

The current sorry state of our democracy, where GOP demagogues, who falsely swore to uphold our Constitution, openly spread lies, knowingly false narratives, and total BS in an attempt to incite violence, undermine our duly elected incoming President, and destroy democratic institutions, including the courts, is in part a reflection of the sad failure of our life-tenured Federal Judiciary to perform its core Constitutional function. That is, to stand up for the Constitution, the rule of law, and individual law human rights in the face failures by the other two branches of Government to uphold their Constitutional responsibilities.

Compare the (finally) unified position of the judiciary on the frivolous election challenges by Trump and his cronies with the failure to stand up for the legal and human rights of asylum seekers, refugees, immigrants, and migrants from the “git go.” Even now, the Courts have failed to sanction Trump and his lawyers for their unethical behavior in bringing frivolous civil suits, with no supporting evidence, for the specific purpose of undermining a free and fair election and using the legal system to attack the legitimacy of the duly elected President-elect and his incoming Administration. “Corruptly weaponizing the law for improper purposes” is clearly inappropriate and unethical. Yet, folks like Rudy and Sydney Powell retain their law licenses and are free to continue to abuse and undermine the system with frivolous litigation.

Dan points to the “ongoing battle between the law and humanity.” That’s the problem! The law should and must be about defending and advancing humanity in the face of tyranny and injustice. We need judges who stand for human justice. For, as MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

Better judges for a better America! 🇺🇸Not just a slogan; a requirement for our democracy to survive!

⚖️🗽🇺🇸Due Process Forever!

PWS

01-03-21

😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Amanda Holpuch
Amanda Holpuch
Reporter
The Guardian

 

Erika Pinheiro
Erika Pinheiro, Litigation & Policy Director, Al Otro Lado, speaks at TEDSalon: Border Stories, September 10, 2019 at the TED World Theater, New York, NY Photo: Ryan Lash / TED, Creative Commons License

https://www.theguardian.com/us-news/2021/jan/01/family-detention-still-exists-immigration-groups-warn-the-fight-is-far-from-over?CMP=Share_iOSApp_Other

Amanda Holpuch reports from the Gulag for HuffPost:

. . . .

The Centers for Disease Control and Prevention (CDC) bars asylum seekers and refugees from the US under an order called Title 42. People who attempt to cross the border are returned, or expelled, back to Mexico, without an opportunity to test their asylum claims. More than 250,000 migrants processed at the US-Mexico border between March and October were expelled, according to US Customs and Border Protection data.

The situation is dire. Thousands of asylum-seekers are stuck at the border, uncertain when they will be able to file their claims. The camps they wait in are an even greater public health risk that before.

Outside the border, Al Otro Lado has fought for detained migrants to get PPE and medical releases. Prisons are one of the worst possible places to be when there is a contagious disease and deaths in the custody of US immigration authorities have increased dramatically this year. They have also provided supplies to homeless migrants in southern California who have been shut out of public hygiene facilities.

Pinheiro said there will be improvements with Trump out of office, but some of the Biden campaign promises to address asylum issues at the border will be toothless until the CDC order is revoked. It’s a point she plans to make in conversations with the transition team.

A prime concern for advocates about the Biden administration is that it will include some of the same people from Barack Obama’s administration, which had more deportations than any other president and laid the groundwork for some controversial Trump policies.

While it is a worry for Pinheiro, she has hope that the new administration will build something better. “I would hope a lot of those people, and I know for some of them, have been able to reflect on how the systems they built were weaponized by Trump to do things like family separation or detaining children,” she said.

Family separation, which has left 545 children still waiting to be reunited with their parents, was a crucial issue for many voters and Pinheiro hopes that energy translates to other immigration policies.

“How did you feel when your government committed the atrocity of family separation in your name?” Pinheiro said. “The next step is really understanding that similar and sometimes worse atrocities are still being committed in the name of border security and limiting migration.”

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

Read the complete article at the link.

I totally agree with Erika Pinheiro that there is no excuse for the continuing violations of our Constitution, statutes, international obligations, and simple human decency. The regime’s policies are nothing more than “crimes against humanity” thinly disguised as “law enforcement,” “national security,” and  “public health” (from a regime whose “malicious incompetence,” cruelty, and callous intentional undermining of medical advice during the pandemic have contributed to the unnecessary deaths of tens of thousands of Americans).

Even more disgracefully, the Supremes and other Federal Courts have failed in their Constitutional duty to stand up to the abusers and hold the regime’s scofflaw “leaders” (to where, one might ask?) accountable. What’s the purpose of life-tenured judges who lack the training, wisdom, ethics, and most of all courage to enforce the legal and human rights of the most vulnerable against lawless, dishonest, and fundamentally cowardly “Executive bullies” hiding behind their official positions? Not much, in my view! There are deep problems in all three branches of our badly compromised and ailing Government!

I have also spoken out on Courtside against the dangers of putting the same failed Dem politicos who thoroughly screwed up immigration policy, and particularly the Immigration Courts, back in charge again. I agree with Erika’s hope that some of them have gained wisdom and perspective in the last four years. But, why rely on the hope that those who failed in the past have suddenly gotten smarter, when there are “better alternatives” out there ready to step in and solve the problems?

Why not put in place some talented new faces from the NDPA with better, more progressive ideas, tons of dynamic energy, and the demonstrated willingness and courage to stand tall against bureaucratic tyranny? Give them a chance to solve the problems! Erika looks like one of those who should be solving problems and implementing better immigration policies “from the inside” in the Biden-Harris Administration!

The “deterrence only paradigm” that has driven our border enforcement policies over the past half century has been a demonstrable failure, both in terms of law enforcement and the unnecessary and unjustifiable human carnage that it has caused. Why keep doing variations on discredited policies and expecting better results?

We know that ugly, racist rhetoric, jailing families and kids in punitive conditions, weaponizing courts as enforcement tools, suspending the rule of law, denying hearings, and even summarily, illegally, and immorally returning asylum seekers to death won’t stop folks from fleeing unbearable conditions in their native countries! They will continue to seek protection in America, even in the face of predictable abuses, life-threatening dangers, and little chance of success in a system intentionally “gamed” to mistreat and reject them while denying their humanity.

Desperate people do desperate things. They will continue to do them even in the face of inhuman abuses inflicted by those whose better fortunes in life have not been accompanied by any particular compassion, understanding of the predicament of others, or recognition of an obligation to abjure the power to bully and torment those less fortunate in favor of addressing their situations in a fair, reasonable, and humane manner.

Human migration is far older than nation states, zero tolerance, baby jails, family incarceration, biased judging, national selfishness disguised as “patriotism,” and border walls. It has outlasted and outflanked all of the vain attempts to artificially suppress it by force and gimmicks. It’s time for some policies that recognize reality, see its benefits, and work with the flow rather than futilely in opposition to it.

It’s past time to look beyond the failures of yesterday to progressive solutions and new leadership committed to solving problems while enhancing justice, respecting human dignity, and enhancing human rights (which, in the end, are all of our rights)!

 

Due Process Forever!⚖️🗽🇺🇸 Same old, same old never!

Happy New Year!😎👍🏼

PWS

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