"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Here’s the DOJ Press Release:
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Obviously, we need an independent Immigration Court with a merit-based, fair, selection system.
PWS
10-11-20
https://newrepublic.com/article/159530/best-way-protect-immigrants-whims-politics
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Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”
Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”
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Read the full article at the link.
Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’s mismanagement and misuse of the Immigration Courts.
Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.
Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!
Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.
Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!
First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.
Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.
It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.
PWS
10-06-20
. . . .
This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.
If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.
Public confidence and public perception that the courts are non-partisan has eroded
Her short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.
Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has writtenthat Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.
When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.
Amy Coney Barrett: what will she mean for women’s rights?
Read more
Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.
Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen.
Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
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Read the rest of Judge Scheindlin’s article at the link.
As I have been saying “Better Judges For A Better America!” It starts with electing a President who will nominate them and a Senate that will confirm them. That requires “regime change” and defeat of the GOP Anti-Democracy Party at all levels.
Dems need to stop sputtering about Barrett, whom they don’t appear able to stop anyway, and get out the vote to insure that she will be the last GOP far right shill on Supremes for many years! Rebuilding and improving American democracy starts NOW, with THIS ELECTION. As Willie Nelson says: “Vote ‘Em Out, Vote ‘Em Out!”
BTW, “Moscow Mitch” and his GOP toadies have plenty of time to race through the Barrett confirmation during an election, but no time to help Americans thrown out of work or losing their health insurance because of the pandemic!🤮⚰️
PWS
10-01-20
From the EOIR website:
Garry Malphrus
Deputy Chief Appellate Immigration Judge
Attorney General William P. Barr appointed Garry Malphrus as a deputy chief appellate immigration judge in September 2020. Judge Malphrus earned a Bachelor of Arts in 1989 from the University of South Carolina and a Juris Doctor in 1993 from the University of South Carolina. From August 2008 to September 2020, he served on the Board of Immigration Appeals, Executive Office for Immigration Review, including as acting board chairman from October 2019 to May 2020. From 2005 to 2008, he served as an immigration judge at the Arlington Immigration Court. From 2001 to 2005, he served as associate director of the White House Domestic Policy Council. From 1997 to 2001, he worked for the U.S. Senate Committee on the Judiciary, which included serving as chief counsel and staff director on the Subcommittee on Criminal Justice Oversight and the Subcommittee on the Constitution. From 1995 to 1997, Garry served as a law clerk for the Honorable Dennis W. Shedd, U.S. District Judge for the District of South Carolina. From 1994 to 1995, he was a law clerk for the Honorable William W. Wilkins of the U.S. Court of Appeals for the Fourth Circuit. From 1993 to 1994, he was a law clerk for the Honorable Larry R. Patterson, Circuit Judge for South Carolina. Judge Malphrus is a member of the South Carolina Bar.
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No surprise here, folks, as Courtside had predicted this back in May:
This appears to be the “penultimate step” in the ongoing process of “benching” the long-time “holdover” Vice Chair Chuck Adkins-Blanch. First, he was “passed over” when Judge Malphrus became the BIA’s Acting Chair following the hasty departure of former Chair David Neal. Now, Malphrus basically has been “layered in” to be the “real Deputy,” who will faithfully continue to carry out Billy’s nativist political agenda, presumably until Adkins-Blanch reaches retirement and finally pulls the plug.
Needless to say, Judge Adkins-Blanch’s name has been conspicuously absent from the BIA’s most recent barrage of anti-immigrant, anti-asylum “precedents.” That is, of course, the “precedents” that Billy lets the BIA write as opposed to the ones that he and his fellow political hacks at “Main DOJ” issue as “AG precedents.”
More and more, the AG, whom nobody except, perhaps, a few intentionally tone-deaf Circuit Court of Appeals Judges, would mistake for an “expert” in immigration law, has taken over the BIA’s precedent setting function. That leaves the BIA basically to do the “mop-up work” of maximizing the impact of Billy’s anti-immigrant policies and insuring that just and fair results below favoring immigrants are reversed upon demand of “EOIR’s masters” at DHS Enforcement.
Talk about the need for an Article I Court with a new cast of characters selected on a merit basis for their demonstrated immigration expertise, and established commitment to due process, fundamental fairness, equal justice, human rights, and practical applied scholarship! That so many Article III judges continue to “go along to get along” with this vile legal charade says some pretty sad things about the overall state of justice and the judiciary in America!
An Article I Court requires judicial leadership that replaces “built to fail ‘Vatican Style’ (or “Legacy INS Style”) hierarchical bureaucracy” with professional court administration and a much “leaner and flatter” judicial structure. A judicial structure where most resources are devoted to actually fairly and efficiently deciding cases, establishing “best practices,” and leading by example. That would eliminate the “Mickey Mouse” demeaning “control freak supervision (“suppression”)” of supposedly senior level “judges” who, if properly selected, would need effective support, but little to no “supervision” in the normal bureaucratic sense of the term.
In the meantime, expect the backlog to grow unabated and the Article IIIs to continue to reverse and return an essentially random selection of the BIA’s reliably “one-sided” jurisprudence for “redos!” That will further increase the backlog without effectively addressing the fundamental problem of an unconstitutional system with a clearly established anti-immigrant political bias!
Just more signs of an American justice system now in the throes of institutional failure!
PWS
09-29-20
Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020)
From the EOIR PIO:
The Board of Immigration Appeals has issued a decision in the Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020)
(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive.
(2) In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered.
PANEL: MALPHRUS, MULLANE, and CREPPY , Appellate Immigration Judges.
OPINION BY: MALPHRUS, Appellate Immigration Judge
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In this case, the BIA sent an asylum grant well-supported by expert opinion back to the IJ for no particular reason other than the DHS didn’t like the result.
The message: The IJ should always look for reasons to disallow, disbelieve, or diminish the weight of the asylum applicant’s persuasive evidence. The IJ should always be looking for “any reason to deny” asylum applications because that’s what Billy wants from his wholly-owned. “judges.”
To quote my friend and Round Table colleague retired IJ Jeffrey S. Chase:
[The BIA], McHenry, and Barr are engaging in tag-team destruction of asylum. So this gives the signal to ignore country experts when their opinions support grants of asylum. Which was stated more explicitly in the proposed 161-page asylum regs. And then if the IJ relies on the DOS report, the Board or AG will say the quoted passage was too vague and generalized to support a finding of social distinction or nexus.
The good news is that a number of brigades of the NDPA are hard at work on comprehensive alternative expert country reports that are much more accurate and well-documented than current DOS propaganda. A number of Courts of Appeals already have “called out” the BIA for routinely ignoring evidence and expert opinions favorable to asylum applicants.
I certainly hope they will see through and expose this rather transparent attempt to further “game the system” against asylum applicants. Actually, under the U.N. Handbook asylum seekers are supposed to receive the “benefit of the doubt.” But, not from this scofflaw regime and their toadies masquerading as “judges.”
It’s also worth noting that this case has already been pending for almost a decade. Obviously, time is no object for EOIR when it comes to looking for ways to deny asylum.
PWS
09-28-20
Paul Grussendorf is organizing this fundraiser.
- I am a lawyer specializing in asylum and refugee law. I have taught refugee law at George Washington University, University of San Francisco and Howard University. I have worked with the U.S. government and the UN Refugee Agency in refugee resettlement all over the world, most recently in Rwanda until COVID shut down our interviews.
- In 2011 I self-published my legal memoir, My Trials: Inside America’s Deportation Factories, focusing upon the deportation system and my time as an immigration judge. It is time to update the book, given all the changes and destructive policies that have occured in recent years to our asylum system. The book received great reviews: “My Trials is both a scathing indictment of a broken immigration system that sends vulnerable immigrants back to perilous situations from which they fled, and a heartfelt call for a return to the values upon which our nation was founded.” American Immigration Lawyers Association. It was endorsed by renowned criminal defense attorney Gerry Spence.
- The budget will include $2000 for editing and formatting, and $3000 for a limited publicity campaign. I am currently working with an editor to make the book available on Amazon by first week of October, so funds are essential now. It will be available on all other platforms mid-October.
- This book has been a labor of love and education, and I have not profited from it. I will be tremendously grateful for assistance to make this updated book available at this critical junction in our nation’s history.
Click here it contribute to Paul’s “Go Fund Me” Campaign:
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Judge, educator, public servant, humanitarian, author, role model, tireless advocate for due process, fundamental fairness, and equal justice for all: Thanks, Paul, for all you have done and continue to do. It’s a total honor to serve with you on the Round Table!🛡⚔️👍🏼
PWS
09-27-20
Susan Gzesh in Just Security:
. . . .
U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.
What Murphy’s Complaint Reveals
According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.
According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).
With respect to the policy rationale to support spending millions of dollars on a border wall, Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).
Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.
DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week. Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.
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Read the rest of Susan’s article at the link.
Hey, 3 known “suspected” terrorists vs 3,000! What’s the big deal? They both contain the number “3.”
This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyed because elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.
I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero.
All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.
In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!
One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.”
The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime.
But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.
Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.
Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.
The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.
We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.
In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.
For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!
PWS
09-17-20
Jennifer Bendery reports for HuffPost:
Hundreds of Americans are dying every day from COVID-19. Unemployment is at 8.4%. Everything is fine.
By Jennifer Bendery
WASHINGTON ― The Senate is back in session after a month of recess and Republicans’ first order of business isn’t a comprehensive coronavirus relief bill. Or emergency stimulus in response to high unemployment. Or legislation addressing nationwide unrest over police violence targeting Black Americans.
It’s confirming more judges.
Senate Majority Leader Mitch McConnell (R-Ky.), who has long said his top priority is getting President Donald Trump’s nominees settled into lifetime federal court seats, didn’t disappoint on Wednesday. At a time when nearly 190,000 Americans have died from COVID-19 and unemployment is at 8.4%, the Senate kicked off its first full day of business with a vote to confirm a district court judge, procedural votes to advance two more district court nominees, another vote to confirm one of those nominees, and two more procedural votes to advance two more district court nominees.
Democrats and Republicans are in a standoff over coronavirus relief legislation. The House passed a sweeping $3 trillion package in May that has gone nowhere in the Senate, where Democrats are ready to pass the House bill but Republicans don’t even agree with each other on what to do. Some prefer no action at all on another coronavirus package because it would add to the growing federal deficit.
McConnell will try to pass a narrowly focused COVID-19 relief bill this week, but it’s purely a political exercise ― an effort to give vulnerable Republicans something to run on ahead of the November elections. It includes funding for small businesses and schools and enhanced $300-a-week unemployment benefits. It leaves out another round of stimulus checks, which Republicans previously supported, and does not include rental assistance or aid to cities and states, which Democrats have insisted on. And it’s not even clear if a majority of Republicans will support the bill.
The Senate Judiciary Committee also met Wednesday for the first time in more than a month. The panel, led by Sen. Lindsey Graham (R-S.C.), has jurisdiction over a number of issues related to the health and economic fallout from COVID-19. Graham could, for example, hold hearings that looked at the needs of state and local law enforcement on the front lines of the pandemic. He could hold hearings on the health and safety of corrections staff and incarcerated people. He could hold hearings on changes in immigration policy tied to the pandemic.
Instead, the committee held a hearing to advance five more of Trump’s judicial nominees.
One of those nominees isn’t even qualified to be a federal judge, according to the American Bar Association. Just as the hearing got underway, the ABA released an embarrassing “not qualified” rating for Kathryn Kimball Mizelle, Trump’s nominee for a seat on the U.S. District Court for the Middle District of Florida.
“The nominee presently does not meet the requisite minimum standard of experience necessary to perform the responsibilities required by the high office of a federal trial judge,” reads the ABA’s review of Mizelle’s nomination.
. . . .
Mizelle, 33, is eight years out of law school and has practiced law for four years. She has participated in a total of two trials (as a law student) and has not tried a case, civil or criminal, as lead or co-counsel.
. . . .
“This nominee has been put forward not only because she is an ultraconservative ideologue, but also because she is a Trump loyalist, having worked in the Trump Justice Department to dismantle many critical civil rights protections,” reads a Tuesday letter to senators from the Leadership Conference on Civil and Human Rights, a coalition of more than 220 national civil rights groups. “The Senate must reject her nomination.”
Trump’s most lasting legacy will arguably be his judges, who will sit on the nation’s courts for decades after he’s left the White House. He has had confirmed a total of 204 Article III judges, including two Supreme Court justices, 53 appeals court judges and 147 district court judges. A common thread among his court picks is that many are young, white, male and hold extreme ideological views on abortion, LGBTQ rights and other civil rights.
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Read the complete article at the link.
Our sinking “Ship of State,” including the failing Federal Judiciary that is largely unrepresentative of our diverse nation, too often lacks engagement with the “human face” of our justice system, and sometimes demeans our best humane national values, can still be saved and put the on the correct course.
It won’t be easy. It won’t happen overnight, particularly with the life-tenured judiciary. But, it must start in November. Remember, the law is about humanity, fairness, and equatable human relations, as embodied in the due process and equal protection clauses of our Constitution.
It’s not the dusty, musty, wooden, racially tone deaf, sometimes intentionally unfair, anti-civil-rights, anti-human rights, and often contrived “anti-social ideologies of the right” that blind a disproportionate number of Trump-Mitch appointees and enable lawless, fundamentally anti-American tyrants like Trump and his cult of sycophants to run roughshod over our country, our national values, and human decency.
Yesterday, Courtside highlighted the monumental achievements of a real American legal heroine and superstar, Attorney Sarah Owings of Atlanta, Georgia. She could have done other things with her skills and her career. Instead, she devoted herself to “working in the trenches of the law,” laboriously making an intentionally unfair and dysfunctional system fairer, and preserving the rights and saving the lives of some of the most vulnerable among us.
That’s what a real lawyer does. Disgracefully, these are the folks now largely missing from our elitist, out of touch with humanity Federal Bench.
Compare her “real life” qualifications, contributions, and courage with those of a strikingly unqualified, lightweight right wing dilettante like Mizelle. That’s one reason why our nation and our judiciary are in failure right now. Lack of leadership and lack of moral courage and human values. It’s literally killing individuals across our nation, a disproportionate number of them people of color. It must stop. Social justice can no longer be demeaned and demolished by those in charge!
It’s past time to stop “undervaluing and ignoring” the outstanding ”practical scholarship” (see, “Law You Can Use”), great courage to speak truth to power, energy, dedication, “retail level litigation skills,” and creative problem solving abilities of the private sector immigration bar, many serving in pro bono, low bono, clinical, or NGO capacities, in Federal Judicial Selection.
As tell law students, “if you can win an asylum case in today’s conditions, everything else you do in law will be a piece of cake.” There are good reasons why some of the largest law firms in America have found pro bono Immigration Court work to be some of the greatest “real life legal training” out there! Also, good reasons why some of the best legal minds and legal strategists in America are working pro bono on amicus briefs for our Round Table of Former Immigration Judges!
A new, independent, Article I Immigration Court with a “merit-based” judicial selection system should be the ideal training ground and future selection pool for a better, fairer, more efficient, more diverse, more representative, and more effective Article III Judiciary. One that would have an unswerving commitment to Constitutionally required “equal justice under law.” A judiciary that would fairly and efficiently solve problems rather than avoiding and often aggravating them! An Article III Judiciary that would actually understand and appreciate immigration and human rights laws and their fundamental connection to the goal of equal justice for all!
The talent necessary to stop the bleeding and vastly improve the American justice system is out there. What’s lacking right now is the leadership and political power to make a better future a reality, for all Americans.
We must take back our nation, before it’s too late for humanity!
PWS
09-10-20
Gabby Del Valle reports in The Verge:
. . . .
Owings had left Monroe decades earlier to attend a small liberal arts college in Tennessee, where she studied English and Russian. After graduation, she moved to Georgia, where she worked as a preschool teacher for a year before going to law school. During her first seven years as an immigration attorney, she fought for her clients in Atlanta’s notoriously punitive immigration courts.
“For a long time, that was the only place I saw how things worked,” she said, “so I thought it was normal for a judge to be like, ‘Fuck you.’ Because that’s how things are here.”
Owings began taking cases in more isolated parts of the state. Almost every month, she drove 150 miles south of Atlanta, deep into rural Georgia, to visit clients detained at the Stewart Detention Center in Lumpkin. Stewart had opened in 2006, a year before Owings got her license. When it opened, the facility was so remote that it didn’t have a court of its own. The Executive Office for Immigration Review (EOIR), the federal agency that oversees the nation’s immigration courts, had yet to find judges who wanted to live in Lumpkin, a rural town of fewer than 2,000 pockmarked by vacant storefronts, where there are more immigrant detainees than actual residents. While it scrambled to bring the legal system to rural Georgia, the agency came up with a high-tech solution. Since it couldn’t get judges to come to Lumpkin, it would bring the detainees to Atlanta — not physically, but through videoconference.
Owings could have fought her clients’ cases remotely, too, from Atlanta, but it was important to be with them in person. For most of a decade, she worked this way: Atlanta, Lumpkin, court, new cases, asylum granted — or, more likely, denied.
Ten years and two presidential administrations later, the virtual courtrooms Owings had fought against had expanded to her hometown. Under President Trump, a crop of new detention centers began opening up in Louisiana in 2018 and early 2019, just a few hours from Monroe. “I was mad at my state, my home state, for having allowed this to happen,” she said. Owings expanded her practice to Louisiana in spring 2019 and started flying down to Monroe and crashing at her parents’ house the night before hearings.
In Lumpkin, Owings had seen firsthand how the government used rural, isolated detention centers to warehouse immigrants out of sight, far from their families, their lawyers (if they had any), and from anyone who might care about what happened to them. She had seen how private prison companies wooed local officials, convincing them that turning vacant local jails into immigrant detention centers would reverse decades of economic stagnation. The big business of detainees would save Louisiana’s dying towns.
But Owings understood the cost of opening detention centers. “We have these small jurisdictions that bit down on a dirty nickel hard because they’re starving for money. And so they’re going to lock up a bunch of humans in these conditions,” she said. “There’s going to be civil rights violations, there’s going to be medical neglect, there’s going to be terrible things that happen, and people are going to be put into these little boxes and forgotten about so that they can be disposed of as quickly as possible and made as miserable as possible through the process.”
As Immigration and Customs Enforcement’s (ICE) network of detention centers spread across the state, Owings’ fears quickly materialized. Like the immigrants she represented in Georgia at the beginning of her career, the people imprisoned in Louisiana are kept hundreds of miles away from lawyers and advocacy organizations that could help them — and now, even from the judges who determine whether they can stay in the country.
One of those jurisdictions is Winn Parish, a rural community in northern Louisiana, an hour-and-a-half drive from Owings’ childhood home. In 2019, the local government agreed to convert a local prison into an ICE detention center. That facility, the Winn Correctional Center, is where Samuel spent four of his six months in federal custody.
. . . .
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Read Gabby’s complete article at the link, including the unusual “happy ending” for “Refugee Samuel.”
What was the point of Samuel’s detention? Of course, there wasn’t any! No legitimate point anyway!
He wasn’t a danger to society, and he wasn’t a “flight risk,” particularly with Sarah Owings representing him. The real reason was to punish him for seeking legal refugee, to coerce him into giving up his claim, and also to harass Owings by making her life more difficult. Unpleasant as Immigration Court tries to be these days, representing someone in detention in the middle of nowhere can be even worse. What a waste of taxpayer money that could be used to address pressing problems!
I feel for the residents of places like Winn Parish. Certainly, if we put our heads together, we could help them come up with some type of economic development that would use their skills and work ethic, without exploiting the human misery of others. Maybe these are the types of ideas that both immigrant entrepreneurs and immigration/human rights advocates have to work on along with Americans in economic distress. Perhaps refugees like Samuel, creative, courageous folks who have had to “reinvent themselves” in a strange land could help out!
Last night, I was on a “Zoom Seminar” dealing with the lessons from the Netflix series “Immigration Nation.” One of my fellow panelists was a doctor from Cuba who had spent a lengthy time in DHS detention and been treated badly before finally being granted asylum with the help of counsel.
Nobody in the audience could fathom why their taxpayer dollars had been used to unnecessarily detain and abuse this talented individual Obviously, she was neither a security nor a flight risk. Rather, her presence in the U.S. as a recognized refugee benefits both her and our country.
We had to explain to the audience that immigration detention these days has more to do with punishment, coercion, and a race-driven White Nationalist immigration agenda than it does with any legitimate governmental purpose. The “New American Gulag” is just another par of the Trump regime’s false immigration narrative that neither Congress nor the Article III courts have bothered to critically examine.
In some ways, Sarah and Samuel might have caught a break; apparently the San Diego Immigration Judge both understood asylum and protection laws and was unafraid to go against “Billy the Bigot’s” preferred result of deny everything. Hats off to that Immigration Judge for courageously “doing the right thing” even in the face of political pressure to cut corners and railroad refugees out of the country without due process!
All to often, the highly politicized EOIR — “Home of The American Star Chamber” stocks detention center “courts” with judges whom they believe to be predisposed to the White Nationalist “deny, discourage, disparage, and deport” program. Seldom are they disappointed; at most detention center “kangaroo” courts the denial rates hover close to 100%.
Adding insult to injury, some of the worst judges, with horrible public reputations for unfair and rude treatment of asylum seekers and their attorneys, and astronomical asylum denial rates, were actually promoted by “Billy the Bigot” to his wholly owned and highly biased appellate “tribunal,” known as the BIA. Some of these unqualified judges were from the Atlanta Immigration Court, whose attitude toward refugees and their attorneys was accurately portrayed by Owings as “so I thought it was normal for a judge to be like, ‘Fuck you.’”
Advocacy groups have made a well-documented case for Atlanta as an “asylum free zone.” Its “judges” apparently revel in that reputation. So much so, that Billy the Bigot seeks to make Atlanta the “model” for his entire unconstitutional “court system” that isn’t a “court system” in any normal sense of the word — except, perhaps, in as the term would be used in a corrupt third-world dictatorship.
Many thanks to Sarah Owings for dong this work and for doing it so well and faithfully under such difficult circumstances. You are truly an “American heroine,” Sarah!
To state the obvious, a system run in accordance with our Constitution, that honored human dignity, and that actually sought “full due process with efficiency” would have dedicated due process, practical-solution-oriented individuals like Sarah on a new, independent, Article I Immigration Bench. Additionally, the immigration appellate level is sorely hurting for judges with the necessary qualifications.
I hope that the day won’t be far off when Sarah and many of her courageous and multi-talented colleagues in the “New Due Process Army” will assume their proper roles on the Federal Bench and in the immigration policy apparatus.
The inexcusable national disgrace and abrogation of justice taking place in Atlanta, Lumpkin, Jena, Winn Parish, and many other “Immigration Star Chambers” is helping to fuel the continuing racial injustices in Minneapolis, Milwaukee, Memphis, Rochester, and numerous other locations throughout our nation.
“Dred Scottification” is all about “dehumanization of the other before the law.” The failure of the Article III Judiciary, starting with the feckless Supremes, and our inept Congress to put an end to these racist-inspired abuses in Immigration Court and elsewhere is a national tragedy of the highest and most debilitating proportions: One that is literally ripping our country apart.
It also shows why we need a new, diverse, representative, progressive Federal Judiciary with judges committed to due process, equal justice, racial justice, and social justice. We’re a long way from that now; and the existential struggles our nation is experiencing at all levels, and the scandalous inability of our institutions competently to solve problems in a constructive manner, shows why change and progress must start sooner rather than later!
PWS
09-09-20
https://www.nytimes.com/2020/09/02/opinion/latinos-trump-election.html
By Elizabeth Méndez Berry and Mónica Ramirez in The NY Times:
Ms. Méndez Berry is a journalist, cultural critic and editor. Ms. Ramírez is the founder of the Latinx House, and the author of the “Dear Sisters” letter that helped inspire the Time’s Up movement.
The story about Latinos in America is an old one. And it isn’t true. Created generations ago by whites to demonize Mexicans and then Puerto Ricans, the racist caricature of Latinos as a menacing foreign monolith persists, even as two-thirds of us were born here and we come from more than 20 different countries.
While we are everywhere in this country, from big cities to small towns, Latinos are largely missing from American media and culture, which makes us vulnerable. President Donald Trump knows this and exploits these fictions for political gain.
Mr. Trump has accomplices. White gatekeepers in media, art and entertainment have long excluded or misrepresented Latinos, particularly Indigenous and Black Latinos, building the cultural scaffolding for the current administration. To defang these old falsehoods, we have to go after their enablers, transform media and cultural power structures and amplify and defend Latino storytellers. We must flex our power as a community.
Representative Joaquin Castro of Texas gave voice to this in a recent column for Variety: “There is a dangerous nexus between the racist political rhetoric and the negative images of Latinos as criminals and invaders that Americans see on their screens.” Mr. Castro added, “Hollywood needs to reckon with its systemic injustice and exclusion of our communities.”
Indeed, all media and culture industries must be held accountable, along with the advertisers, investors and funders who bankroll their behavior.
. . . .
We are the second largest ethnic group in this country. Many of us were here before the ancestors of most people who call themselves Americans. Others came as casualties of U.S. colonial experiments, covert operations and trade deals.
No matter how we got here or when, this country should be grateful for the Latino community: during this pandemic, farmworkers, 80 percent of whom are Latino, have put food on the table for us all and scores of other Latino workers have propped this country up, often at great cost to themselves.
The United States must reckon with the fact that Latinos are essential to its survival and to its splendor, and have been for generations. We Latinos need to know it too.
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Read the full article at the link.
Another place where Hispanics are spectacularly under-represented is among the ranks of U.S. Immigration Judges. It’s largely a bastion of White male, White female power, with a smattering of African Americans and Asian Americans thrown in. Very few judges of Hispanic ancestry.
Worse yet, a number of Immigration Judges appointed or promoted by this regime have notorious records of anti-immigrant, anti-asylum bias. Much of this bias has been directed specifically against Latino asylum seekers from Central America, particularly women refugees fleeing well-documented systematic persecution because of gender.
Indeed, anyone who actually took the time to educate themselves about conditions in Central America would recognize Jeff “Gonzo Apocalyoto” Sessions’s largely fictionalized “put down” of clear persecution of a Latino female refugee from El Salvador in Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018) for what it really is: an essay promoting anti-immigrant racism, false narratives, and misogyny disguised as jurisprudence. For the true story of Ms. A-B- and her suffering see: https://immigrationcourtside.com/2019/01/25/the-human-agony-of-asylum-spend-4-min-with-ms-a-b-human-womens-rights-expert-professor-karen-musalo-beaten-raped-threatened-with-death-by-her-husband-hounded-throughout-h/
The Trump regime’s overtly racist attack on Hispanic migrants, particularly women, children, and asylum seekers, obviously has a larger target: Hispanic Americans as a group, the legitimacy of their political power as citizens, and their very humanity. As I say over and over, it’s what “Dred Scottification,” and its acceptance and disgusting furtherance by a majority of our highest Court, is all about!
Hispanics are going to have to fight for their fair share of power at the ballot box, no easy task given the GOP’s all-out assault on minority voting rights and the Supremes’ majority’s disgraceful failure to defend the voting rights of Americans of color.
But, it would be in everyone’s interest if we stopped playing the “race game” in America and actually made equal justice and full participation by all in society, regardless of race, the touchstone of a better future for America. Only then, will we rid ourselves of the unnecessary burdens of the past and reach our full potential as a nation of peace, prosperity, productivity, creativity, and humanity!
PWS
09-03-20
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report” reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4 will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
Session 1: Threats to the Rule of Law in America: A SurveyTuesday, September 15 | 1:00 p.m. – 4:00 p.m.
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and InformationTuesday, September 22 | 1:00 p.m. – 4:00 p.m.
Session 3: Interference with Judicial Independence and Local Law Enforcement
Thursday, October 8 | 11:00 a.m. -2:00 p.m.
Session 4: Threats to Individual and Societal RightsWednesday, October 21 | 1:00 p.m. – 4:00 p.m.
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?Wednesday, November 18 | 1:00 p.m. – 4:00 p.m.
FOR IMMEDIATE RELEASE
Contact: Eric Friedman
efriedman@nycbar.org
Eli Cohen
ecohen@nycbar.org
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov, Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
The forum is produced by the City Bar’s Task Force on the Rule of Law, which, along with other relevant City Bar Committees, has issued a series of reports and statements relating to inappropriate actions by the Attorney General in a broad range of areas, Presidential dismissal of Inspectors General and interference in criminal and military trials, inappropriate action by the Secretary of State to undermine the International Criminal Court, the need for legislative reform of Presidential emergency powers, a proposal to replace Guantanamo’s military commissions with an Article III court and the improper use of federal security forces to clear peaceful demonstrators in Washington, D.C. and displace local law enforcement in Portland.
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
Session 1: Threats to the Rule of Law in America: A Survey
Tuesday, September 15 | 1:00 p.m. – 4:00 p.m.
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: Timothy Snyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
Session 2: Checks, Balances and Oversight – the Distribution of Governmental Power and Information
Tuesday, September 22 | 1:00 p.m. – 4:00 p.m.
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
Session 3: Interference with Judicial Independence and Local Law Enforcement
Thursday, October 8 | 11:00 a.m. -2:00 p.m.)
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried, Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
Session 4: Threats to Individual and Societal Rights
Wednesday, October 21 | 1:00 p.m. – 4:00 p.m.
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
Wednesday, November 18 | 1:00 p.m. – 4:00 p.m.
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
Interested media please email efriedman@nycbar.org for access to this event.
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org
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Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mocking the Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.” It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it: from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for all under our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions! Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences of what another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
PWS
09-03-20
Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020)
https://www.justice.gov/eoir/page/file/1311336/download
BIA HEADNOTE:
(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.
PANEL: MULLANE, KELLY, and GORMAN, Appellate Immigration Judges
OPINION BY: GORMAN, Appellate Immigration Judge
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30 days to file an application for asylum for an unrepresented, detained, non-English speaking applicant appearing by televideo, huh? “Full and fair hearing?” Only in the “Never Never Land” of EOIR in the 5th Circuit,
I can guarantee that this bogus “30-day-filing standard” will be used to railroad lots of hapless and clueless asylum applicants out without due process.
The good news: Outside the “Judicial Wasteland” of the Fifth Circuit, at least some reviewing Circuits likely will “blow the whistle” on this disingenuous nonsense and abdication of Constitutional duties and send the cases back to the meat packing plant (a/k/a EOIR) for redos, thus adding to the “Aimless Docket Reshuffling” and astronomical backlog.
There is actually a reason why fundamental fairness and competent court management are required by Due Process! In the long run, following the Constitution and the statute, as well as having “judges” with actual expertise, independence, courage, and some “practical common sense,” as opposed to EOIR’s endless “haste makes waste” enforcement gimmicks and one-sided, bias-driven judging, makes for a more efficient justice system for everyone. But, that will require a “full housecleaning” at EOIR.
PWS
09-01-20
By Seung Min Kim in the WashPost:
. . . .
But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.
The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.
“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.
She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”
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Read the full article at the link,
Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.
Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:
The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history!
In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!
Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!
It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!
It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!
PWS
08-30-20
Joe Davidson reports for WashPost:
If Joe Biden is elected president, he promises to overturn President Trump’s aggression against federal employee unions, support regular pay raises for federal employees and protect their workplace rights.
Biden, the Democratic nominee, has pledged to upend Trump’s actions concerning federal labor organizations on Inauguration Day in January. Trump’s assaults were codified in three executive orders he issued in 2018. They systematically undermined the ability of unions to represent not only their members, but all employees in agency collective-bargaining units.
Saying Trump “has loosed a direct attack on our members’ union rights and dignity on the job,” the American Federation of Government Employees (AFGE) questionnaire to Biden outlines policies the largest federal union wants reversed.
“This includes purging lawful representational activity from government worksites and equipment, weaponizing the bargaining process to propose, and in some cases impose, one-sided contracts, attacking our statutory right to collect voluntary dues, crippling our ability to mediate disputes on duty time, and more,” says the questionnaire’s introduction. “Taken together, these attacks constitute more than just a threat to our members’ livelihoods, they threaten the survival of the merit-based civil service system on which our government is built.”
AFGE endorsed Biden last month. In two internal polls, AFGE said its members supported Biden over Trump by more than 30 points.
The first question asked Biden to commit to overturning the executive orders and other directives that weaken employee due process and collective bargaining rights “on your first day in office.” Biden agreed and said “the federal government should serve as a role model for employers to treat their workers fairly.”
“On my first day in office,” he added, “I will restore federal employees’ rights to organize and bargain collectively, restore their right to official time, and direct agencies to bargain with federal employee unions.” Official time allows union leaders to represent employees, including those who are not union members, in grievance procedures and matters involving issues such as workplace safety and productivity, while being paid by the government.
[If he gets a presidential Day 1, Biden has a nearly endless list of ways to spend it]
In addition to Biden’s answers, the Democratic Party Platform promises to “strengthen labor rights for the more than 20 million public-sector employees” at all levels by supporting legislation that would “provide a federal guarantee for public-sector employees to bargain for better pay and benefits and the working conditions they deserve.”
While Trump has been relentless in his federal union offensive, all was not copacetic when Biden served as Barack Obama’s vice president. Government workers vehemently opposed three federal pay freezes imposed under Obama, with congressional approval, during an era of budget tightening.
But the Obama-Biden administration did not seek to fundamentally undermine unions as Trump has done or diminish federal workers. Obama’s stated effort to “make government cool again” contrasts sharply with Trump’s “drain the swamp” attitude toward government. Trump did not respond to AFGE’s questionnaire.
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Read the complete article at the link.
Just another instance where Biden is going to have to separate himself from some misguided, occasionally weak-kneed and shortsighted, Obama-era policies and establish himself as his own man, with a decidedly more practical, aware, and progressive approach. And, as a long-time public servant himself (albeit an elected one) — whose career has in many ways been built and furthered by the skills, expertise, and contributions of civil servants in all branches of Government — I believe he is up to the task. Indeed, he might well be the best-qualified candidate in my lifetime to save and enhance our now reeling and crumbling civil service — one of the “crown jewels” of American democracy now under unrelenting assault from a thoroughly corrupt Trump and his GOP nihilist “wrecking crew.”
For example, look at how the cowardly and totally unethical “Billy the Bigot” Barr tried to “punish” Judge Ashley Tabaddor and the National Association of Immigration Judges (“NAIJ”) (disclosure: I am a proud retired member) for speaking “truth to power.” As the only ones authorized to speak out on behalf of Immigration Judges (regardless of membership in the NAIJ), Judge Tabaddor and other NAIJ officials exposed the massive corruption, gross mismanagement, improper politicization, and medically dangerous working conditions at EOIR! As a result, Billy tried to silence her and the NAIJ by filing a frivolous action to “decertify” the NAIJ based on bogus reasons, many rejected by the FLRA in the past. This abuse of Government resources and process by Billy has since been dismissed after hearing by a FLRA official, as previously reported in “Courtside.”
As a civil servant for more than 35 years, serving in Administrations of both parties, at levels from “worker bee” to “Senior Exec,” and a veteran of 21 years on both levels of the Immigration Bench (when it actually more resembled a “real court” than the ridiculous parody engineered by Gonzo Apocalypto and Billy the Bigot), I know what I’m speaking about.
Incidentally, I was one of the “founding brothers and sisters” of the BIA employees’ union in the 1970s, and then went on to battle that same union before the FLRA during my tenure as BIA Chair in the late 1990s. So, like many issues in immigration during my career, I understand both sides.
But, I never questioned the BIA union’s authority to speak for the staff. In most ways, it was a good “focal point” for getting important issues out in the open and resolving them, even if the process was occasionally contentious and frustrating. And, I’d have to admit to getting some good ideas on management improvements from union officials. So good, in fact, that I actually hired some of them to become staff managers at the BIA.
Over my career, I was involved in thousands of asylum and refugee cases, many of them successful. Many were fleeing countries with great progressive “paper constitutions” and sometimes even very “facially reasonable” statutory law. A number of these countries had even signed the U.N. Refugee Convention. What often made these countries “persecutors” as opposed to “protectors” was in the “execution” rather than the “black letter law.”
Two characteristics that many of these persecutors had in common were: 1) an authoritarian executive who controlled a corrupt civil service usually “on the take,” staffed with family members, tribe members, or “party regulars,” and personally loyal to the leader rather than the constitution and statutes; and 2) “courts” that were either instruments of the leader and his tribe or party or too feckless to stand up against executive tyranny.
Under Trump and his corrupt GOP cronies, the US is well on its way to this type of “banana republic” public service in all three branches. And, don’t thank that a healthy economy or a robust stock market are “proof” against tyranny. Today’s China, as well as Nazi Germany and Imperial Japan, are prime examples of how “economic success and power” do not necessarily equate with good government, equality, or lack of repression.
PWS
08-26|-20
Laura Lynch reports from AILA:
FOR IMMEDIATE RELEASE
August 26, 2020
Contact: George Tzamaras, gtzamaras@aila.org
Tessa Wiseman, twiseman@aila.orgWashington, DC – Today, the Department of Justice (DOJ) published a sweeping proposed rule in the Federal Register that would overhaul Board of Immigration Appeals (BIA) processes and remove due process safeguards with an aim of fast-tracking deportations. The public has 30 days to comment on the proposed rule.
AILA’s Senior Policy Counsel, Laura Lynch, stated, “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges. Putting this much power in the hands of an administrator who is not even a judge will give the Trump administration unprecedented ability to manipulate the courts in furtherance of its deportation agenda. The need for independent immigration courts has never been more urgent, or clear. This exemplifies why AILA is calling on Congress to pass legislation creating an immigration court system separate and independent from DOJ.”
AILA’s First Vice President, Jeremy McKinney, added, “The realities of this proposed rule are grim—more power entrusted to a hand-selected bureaucrat, increased pressure for speedy decisions at the cost of due process, and a dismantling of an appeals process vital to a fair day in court. Deeply troubling is the rule’s codification of the prohibition former Attorney General Jeff Sessions tried to impose on judges’ ability to administratively close cases, a fundamental authority judges need to efficiently manage their overloaded dockets. At least two circuit courts have rejected Sessions’ analysis and overturned the decision. The proposed rule is part of a larger effort by the DOJ to exert improper political influence over immigration court decisions and to turn the immigration courts into an enforcement mechanism. It’s a power grab, pure and simple.”
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Laura A. Lynch, Esq.
Senior Policy Counsel
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Thanks, Laura, for all that you and AILA do to fight for equal justice for all and to combat the evil influence of Billy the Bigot and his toadies over at EOIR!
Litigate, litigate, litigate! Force the Article IIIs to confront on a mass basis the human carnage, overt xenophobia, mockery of justice, and racism that they have fostered with their timid and indolent approach to the massive assault on our justice system and human dignity from Billy the Bigot and the White Nationalist regime! Make a record for future generations to see who stepped up, who chickened out, and what kind of individuals hid behind their black robes while humanity suffered and the lives of some of the most vulnerable were unlawfully and unethically destroyed.
There is no excuse for the continued, unconstitutional EOIR abomination! Past time for the Article IIIs to call halt to this perverted charade and transfer all immigration hearings to U.S. Magistrate Judges until Congress and the Executive create a new, independent, constitutionally compliant Immigration Court!
PWS
08-26-20
