MUST SEE TV:  “IMMIGRATION NATION” PREMIERES TODAY ON NETFLIX:  Time Magazine Says “Netflix’s Searing Docuseries Immigration Nation Is The Most Important TV Show You’ll See In 2020!” 

Immigration Nation 

Directed by Christina Clusiau and Shaul Schwarz

I appear, along with many others, in a later episode.

As you watch, ask this question: What does most of the enforcement you see have to do with any legitimate notion of “homeland security” except in the sense that abusing, terrorizing, separating, and removing individuals of color evidently makes some folks in the U.S., particularly Trump supporters, feel “more secure?”

No, it’s not “just enforcing the law!” No law is enforced 100% and most U.S. laws are enforced to just a limited extent due to priorities, funding, and sensible prosecutorial discretion used by every law enforcement agency. 

How much does the Trump Administration “enforce” environmental protection laws, civil rights laws, laws protecting the LGBTQ community from discrimination, fair housing laws, financial laws, health and safety laws, tax laws, or for that matter ethics laws, whistleblower protections, or anti-corruption laws? 

Indeed, as hate crimes directed against the Hispanic, Asian, and Black communities have risen, prosecutions have actually fallen under Trump. See e.g., https://www.cnn.com/2020/08/02/us/hate-crimes-latinos-el-paso-shooting/index.html.

Although domestic violence hasn’t decreased in ethnic communities, prosecutions have gone down as a result of the Administration’s “terror tactics” as illustrated in Immigration Nation. Jeff “Gonzo Apocalypoto” Sessions’s racially-motivated prosecutions of minor immigration violators, intended to promote family separation and “deter” others from asserting legal rights, actually diverted Federal prosecutorial resources from real crimes like drug trafficking and white collar crimes.

Remember, Jeff Sessions walks free (his biggest “trauma” being a well-deserved primary defeat in Alabama); his victims aren’t so lucky; some of their trauma is permanent; their lives changed for the worse, and in some cases eradicated, forever! Where’s the “justice” and the “rule of law” in this?

Prosecutions are always prioritized and “targeted” in some way or another, sometimes rationally, reasonably, and prudently, and other times with bias and malice. So, as you watch this and hear folks like former Acting ICE Director Tom Homan and other Government officials pontificate about “just enforcing the law” or “required by law,” you should recognize it for the total BS that it is!

The Trump Administration’s immigration enforcement program is clearly designed by folks like Stephen Miller, Sessions, and others to be invidiously motivated and to terrorize communities of color including U.S. citizens and lawful residents who are part of those communities. They are an affront to the concepts of “equal justice under law” and eliminating “institutional racism.” 

The Administration’s policies are actually “Dred Scottification” or “dehumanization of the other.” You can see and hear it in the voices of DHS enforcement officials, a number of whom eventually view other humans as “numbers,” “priorities,” “quotas,” “missions,” “ops” (“operations”), “beds,” or “collateral damage.” 

That’s exactly how repressive bureaucracies in Germany, the Soviet Union, China, and other authoritarian states have worked and prospered, at least for a time. By breaking dehumanization into “little bureaucratic steps” individuals are relieved of moral responsibility and lulled into losing sight of the “big picture.” 

Did the folks repairing the tracks and switches for the German railroads focus on where the boxcars were heading and what eventually would happen to their passengers? Did they even know, wonder, or care what was in those boxcars?

And, in case you wonder, family and child separations, supposedly eventually abandoned by Trump, might have diminished as a result of court cases, but they still regularly occur. Only now they are kept largely “below the radar screen” and disingenuously disguised under the bureaucratic rubric “binary choice.”

What has really diminished is less the abuses and more the national and international outrage about those abuses. Dishonesty, immorality, and cruelty have simply become “normalized” under Trump as long it’s largely “out of sight, out of mind.”

What do you imagine happens to those turned away at our borders without any meaningful process and “orbited” to the Northern Triangle — essentially “war zones?” (Preliminary studies show that many die or disappear.) A majority of the Supremes don’t care, and apparently most Americans don’t either as long as the carnage and tears aren’t popping up on their TV screens.

And, in many cases, the “removals” and denials of fair process, both the ones you see in Immigration Nation and the ones you don’t, are actually detrimental to our nation, our values, our society, and our future. The series mentions “being one on the wrong side of history;” that’s precisely where the DHS is under Trump. But, so is the rest of our nation for having allowed an evil charlatan like Trump to have power over our humanity.

This November, vote like your life and the future of our nation depend on it! Because they do! We can’t undo the past! But, we can make Trump part of that past and change our future for the better!

PWS

08-03-20

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BAD NEWS FOR  BIGOTLAND: Even As Billy The Bigot Blatantly Bashes The “Categorical Approach,” 10th Cir. Blasts Billy’s Biased BIA’s Bogus Blowing Of Same To Illegally Deport Under CO Controlled Substances Law! 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

10th-Johnson-drugs19-9550

From: Dan Kowalski 

Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!

 

 

team,

a huge victory today for one of our clients, and hopefully many other folks in our community.

 

in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.

 

the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.

 

-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.

 

-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.

 

this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.

 

keep loving, keep fighting.

h

Hans Meyer

The Meyer Law Office, P.C.

 

To unsubscribe from this group and stop receiving emails from it, send an email to immprof+unsubscribe@lists.ucla.edu.

Hans Meyer ESQ
Hans Meyer ESQ
Meyer Law
Denver, CO

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

Congratulations, Hans!

As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.

America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,  dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.

Due Process Forever!

PWS

08-02-20

⚖️🗽😎👍🏼👨🏾‍🎓🏆MASTER CALENDAR REFORM: WHAT THE POST-KAKISTOCRACY IMMIGRATION COURT COULD LOOK LIKE — “The Asylumist” Jason Dzubow Shows Exactly Why An Independent Article I Immigration Court With More “Private Sector Experts” (Like Jason & Many Others) As Judges & Judicial Administrators Would Promote “Due Process With Efficiency” & Creative Judicial Administration That Would Be Good For Everyone Involved (Including DHS)!

Jason Dzubow
Jason Dzubow
The Asylumist

https://www.asylumist.com/2020/07/29/re-thinking-the-master-calendar-hearing-in-the-time-of-coronavirus/

New post on The Asylumist pastedGraphic.png
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.

Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.

Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.

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MCHs are no more efficient today than they were in olden times.

While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–

e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.

An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.

Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.

Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.

All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.

Jason Dzubow | July 29, 2020 at 9:09 am | Tags: coronavirus, court, EOIR | Categories: Immigration Court | URL: https://wp.me/p8nkzm-21G

pastedGraphic_2.png Re-Thinking the Master Calendar Hearing in the Time of Coronavirus

by Jason Dzubow

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

Thanks, Jason, for some great ideas!

 

One could wonder why EOIR hasn’t done this already. Unfortunately, the answer is obvious: It’s a “built to fail system” FUBAR System, run by a maliciously incompetent politicized kakistocracy whose main objective is to screw immigrants and secondary objective is to degrade and demoralize its own employees.

Creative thinking and working collectively and cooperatively with knowledgeable “stakeholders” — private counsel, pro bono groups, NGOs, immigrants, judges, staff, and ICE attorneys — is actively discouraged if not outright prohibited by current the political kakistocracy. That’s what happens when a racist, xenophobic agenda replaces due process and fundamental fairness as the objective and vision of the system.  A kakistocracy actually inhibits and suppresses creative positive change in favor of  “political gimmicks” and “haste makes waste” non-solutions to problems. The Trump regime is “Exhibit A!”

That’s why true reform can’t come without: 

  1. regime change; 
  2. Article I; 
  3. return to a sole focus on due process and fundamental fairness through teamwork and innovation; 
  4. a merit based Immigration Judiciary at all levels; and 
  5. professional court administration accountable to that independent judiciary (not a political kakistocracy).

Thanks for pointing us in the right direction, Jason! I know from my experience that there are lots of other folks out there in private sector with some great ideas on how to make the Immigration Court System functional while advancing due process, fundamental fairness, and human rights.

Another idea for promoting due process with efficiency developed by my friend retired Wisconsin Judge Tom Lister and me is to create a trained corps of Reserve Immigration Judges. https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/

This would be comprised of retired  judges from all systems who could work on a volunteer basis to perform certain types of standard judicial tasks to free up Immigration Judges to concentrate on fairly resolving the most difficult legal issues at individual hearings and to work on their opinion writing.

Master calendar hearings, motions calendars, status calls, bond hearings, and certain types of hearings where the issues are primarily factual would be naturals for a Reserve Immigration Judge Corps.  It also would allow the Immigraton Court System to be more responsive to workload fluctuations without the problems of  “fire drill” overstaffing, understaffing, and “Aimless Docket Reshuffling” that currently plague the system.

Right now, we lack the political will to get the job done. That must start this November with “regime change” at all levels of our political system. 

Elected officials who aren’t willing to prioritize and commit to an independent Article I Immigration Court dedicated to due process and fundamental fairness should be voted out of office. Enough of the nonsense, malicious incompetence, and inhumanity. Time for a change! We can’t afford the kakistocracy!

Due Process Forever!

PWS

07-29-20

🏴‍☠️☠️⚰️👎🏻🤮HATE & BIAS RULE WHERE EQUAL JUSTICE FOR ALL IS SCORNED! —THE WORST OF THE WORST FIND A HOME IN AMERICA’S STAR CHAMBERS, THANKS TO BILLY THE BIGOT, ENABLED BY A CONGRESS & ARTICLE III JUDGES UNWILLING TO STAND UP AGAINST “HATE AGENDA” IN “AMERICA’S STAR CHAMBERS!” — Noah Lanard @ Mother Jones Reports!

 

https://www.motherjones.com/politics/2020/07/he-defended-anti-gay-and-anti-muslim-causes-now-hes-an-immigration-judge/

Noah Lanard writes in Mother Jones:

He Defended Anti-Gay and Anti-Muslim Causes. Now He’s an Immigration Judge.

Brandon Bolling argued that Islam was incompatible with the First Amendment and homosexuality was not innate.

For indispensable reporting on the coronavirus crisis and more, subscribe to Mother Jones’ newsletters.

During the 2014–2015 school year, Caleigh Wood started to learn about Islam as part of her 11th grade world history class. Upon discovering this, Caleigh’s dad, John, wrote on Facebook that he “just about fucking lost it,” adding in response to a commenter, “A 556 round [of ammunition] doesn’t study Islam and it kills them fuckers everyday.” John told the school’s vice principal that “you can take that fucking Islam and shove it up your white fucking ass,” according to federal court records. After saying that he was going to create a “shit storm like you have never seen,” he got banned from the La Plata, Maryland, high school.

That could have been the end of the story. Instead, Brandon Bolling and other lawyers from the Thomas Law More Center, a right-wing Christian group that declares itself “battle ready to defend America,” represented John as he sued the Charles County public school system for allegedly attempting to indoctrinate his daughter into Islam.

Last week, the Justice Department announced that it had hired Bolling, a former Marine and federal attorney, to be an assistant chief immigration judge in Texas, even though he has no discernible immigration experience. During two stints at the Thomas More Law Center—neither of which is disclosed in his government bio—Bolling worked on numerous cases that pitted his clients against Muslims and the gay community. Now Bolling will help oversee the immigration cases of people detained in El Paso, and could be responsible for deciding whether victims of persecution based on their religions and sexual orientations receive protection under US asylum laws.

Bolling is one of 46 new immigration judges recently hired by the Trump administration. Another is Matt O’Brien, who served as the research director for the Federation for American Immigration Reform, one of the country’s leading anti-immigrant groups. The decision to hire both men is an escalation of the Trump administration’s efforts to select judges sympathetic to its anti-immigration agenda. (The Justice Department’s Executive Office for Immigration Review and the Thomas More Law Center did not respond to requests for comment.)

As part of the Justice Department, immigration courts lack the independence of federal courts. The decisions they make can determine whether immigrants who have been in the United States for decades can remain, or whether asylum seekers will be deported to the countries they fled. Even when immigrants appeal their decisions, they generally stick, since the Trump administration has made a point of filling the Board of Immigration Appeals with judges known for denying nearly all asylum claims.

. . . .

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

Read the rest of Noah’s article at the link.

As the world watches America spiral downward and our institutions, once admired by democracy advocates everywhere, spinelessly crumble in the face of tyranny, nowhere is the problem more pronounced than in the clearly unconstitutional, bias-driven, and grotesquely unfair Immigration “Courts.”

Racial justice and equal justice in America will remain cruel illusions unless and until we demand an end to these Star Chambers and hold those responsible for creating and enabling their current toxicity accountable! 

Certainly giving Thomas More a bad name. And like lots of those caught up in the EOIR Star Chamber, he has no way of defending himself against the Bollings and Barrs of the world!

PWS

07-25-20

MORE DEADLY ☠️ MISTAKES: 6th Cir. Finds BIA Ignored Relevant Evidence In Trying To Deny Asylum To Russian Whistleblower — Skripkov v. Barr

Dan Kowalski reports from LexisNexis Immigration Community:

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-asylum-russia-corruption-skripkov-v-barr#

CA6 on Asylum, Russia, Corruption: Skripkov v. Barr

Skripkov v. Barr

“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”

[Hats off to Brenna D. Duncan!]

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

When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber. 

Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.

Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case. 

That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.

The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.

Due Process Forever!

PWS

07-22-20

🏴‍☠️☠️⚰️👎🤮KAKISTOCRACY KORNER:  Chase, Schmidt Rip Billy The Bigot’s Appointment Of Hate Grouper To Arlington “Bench” – Failed System Drops All Pretenses Of Fairness & Due Process As Feckless Congress & Complicit Article IIIs Flunk Constitutional Duties! –

 

https://www.law360.com/immigration/articles/1293543/ex-fair-research-director-among-46-new-immigration-judges

Hannah Albarazi
Hannah Albarazi
Federal Courts
Reporter
Law360
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Me
Me

Ex-FAIR Research Director Among 46 New Immigration Judges

By Hannah Albarazi

. . . .

“It would be impossible for one to receive a fair hearing before Matthew O’Brien,” Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360. Chase said O’Brien has expressed a view of asylum law that is at odds with the controlling circuit case law that he would be tasked with applying from the bench.

Chase said O’Brien has “basically spouted propaganda for an organization openly hostile to immigration.”

His appointment, Chase said, shows that the Trump administration doesn’t want a fair and independent immigration court and is proof that the Executive Office for Immigration Review needs to be taken out of the control of the Department of Justice, an enforcement agency.

The administration “has repeatedly emphasized to classes of new immigration judges that they are above all employees of the attorney general, who does not believe most asylum seekers are deserving of protection,” Chase said.

These appointments could negatively impact the immigration courts for decades, Chase said.

Paul Wickham Schmidt, a retired U.S. immigration judge who chaired the Board of Immigration Appeals in the Clinton administration, also slammed the recent wave of appointments.

“The idea that these are the 46 best qualified individuals in America to discharge these awesome responsibilities in a fair, impartial and expert manner, in furtherance of due process of law and with recognition of the human rights and human dignity of the individuals whose lives are at stake, is beyond preposterous. It’s a fraud on American justice,” Schmidt told Law360.

Schmidt didn’t mince his words about O’Brien’s appointment either.

“As someone who has helped FAIR spread its racially biased, anti-immigrant, and anti-asylum propaganda and false narratives, O’Brien is not qualified to be a fair and impartial quasi-judicial decision maker as required by the due process clause of our Constitution,” Schmidt said.

.  .  . .

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

Those with Law360 access can read Hannah’s complete article at the link.

The U.S. Justice system, once the envy of free nations throughout the world, is disintegrating before our eyes. If there is no justice for those whose lives are at stake, there will be no justice for any of us in the Trump/Barr Third World kakistocracy.

Due Process Forever! Corrupt & Feckless Institutions Parodying Justice, Never!

 

PWS

 

07-21-20

🏴‍☠️☠️⚰️👎🏻KAKISTOCRACY GONE WILD: Billy The Bigot Adds 46 More To America’s Star Chambers — Long on Government Backgrounds, Particularly Prosecutorial — Short on Immigration Expertise or Reputations For Fairness &  Scholarship — CONSPICUOUSLY ABSENT: Asylum, Human Rights Expertise & Experience Representing Humans Seeking Justice!

Here’s the list with bios:

https://www.justice.gov/eoir/page/file/1295301/download

This list includes what appears to be a municipal traffic court judge and someone who spent the last four years working for a white nationalist hate group (per the SPLC). 

https://www.youtube.com/watch?v=mesbqxTSzEM

Due Process Forever! America’s Star Chambers, Never!☠️⚰️🤮

PWS

07-19-20

⚖️CALLING OUT WHITE NATIONALIST JUDGING: In a Remarkable Opinion, 4th Cir. Chief Judge Roger Gregory Blasts Colleague’s Retrograde Views on Race, Judging, Policing, & Communities of Color!

Chief Judge Roger Gregory
Chief Judge Roger Gregory
U.S. Court of Appeals
Fourth Circuit

U.S. v. Curry

https://www.ca4.uscourts.gov/opinions/184233A.P.pdf

GREGORY, Chief Judge, concurring:

Our decision today affirms that a central tenet of law nearly as old as this country—

namely, “[t]he right of the people to be secure . . . against unreasonable searches and seizures”—applies equally to all. U.S. Const. amend. IV. I join the majority Opinion in its entirety. However, I must say a few words in response to Judge Wilkinson’s dissent.

When I read the first line of Judge Wilkinson’s dissent I was heartened by the thought: well, at least he acknowledges that there are “two Americas.” But this glint of enlightenment was to serve as a “soap box” for his charge against the majority’s decision. It is understandable that such a pseudo-sociological platform was necessary as his assertions are bereft of any jurisprudential reasoning. More to the point, his recognition of a divided America is merely a preamble to the fallacy-laden exegesis of “predictive policing” that follows. Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.

Of course, the story of two Americas of which Judge Wilkinson speaks is an ancient tale to some. See, e.g., Frederick Douglas, “What to the Slave is the Fourth of July?” 1852. There’s a long history of black and brown communities feeling unsafe in police presence. See, e.g., James Baldwin, A Report from Occupied Territory, The Nation, July 11, 1966 (“[T]he police are simply the hired enemies of this population. . . . This is why those pious calls to ‘respect the law,’ always to be heard from prominent citizens each time the ghetto explodes, are so obscene.”). And at least “[s]ince Reconstruction, subordinated

communities have endeavored to harness the criminal justice system toward recognition 33

that their lives have worth.” Deborah Tuerkheimer, Criminal Justice and the Mattering of Lives, 116 Mich. L. Rev. 1145, 1146 (2018). Thus, just a few decades ago, laws designed to decrease violence in these communities were considered “a civil rights triumph.” James Forman, Locking Up our Own: Crime and Punishment in Black America 73 (2017). The thought being that our government had finally “promised to provide police protection to a community so long denied it.” Id. This increased protection, however, led to what has been described as “a central paradox of the African American experience: the simultaneous over- and under-policing of crime.” Id. at 35.

Judge Wilkinson chooses to focus largely on one dimension of this paradox, ignoring the details of the familiar perils of over-policing. See, e.g., Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (2015); Michael Tonry, Punishing Race: A Continuing American Dilemma (2011); Michelle Alexander, The New Jim Crow (2010); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010); Ruth Wilson Gilmore, Golden Gulag (2007). Describing the hazard of “hot spot policing” as “the danger of overreaction,” Wilkinson Dis. Op. at 68, Judge Wilkinson mitigates the concerns of some that any encounter with an officer could turn fatal. See Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (describing “the talk” that black and brown parents frequently give to their children “all out of fear of how an officer with a gun will react to them”); see also United States v. Black, 707 F.3d 531, 541 (4th Cir. 2013) (“In certain communities that have been subject to overbearing or harassing police conduct, cautious parents may

counsel their children to be respective, compliant, and accommodating to police officers, 34

to do everything officers instruct them to do.”). In so doing, my dissenting colleague in turn presents a sordid view of under-policing, suggesting that our decision today will lead to “an America where gated communities will be safe enough and dispossessed communities will be left to fend increasingly for themselves.” Wilkinson Dis. Op. at 69.

But we know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed “dispossessed” or “disadvantaged”—that they feel the most secure. Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities. But those inclined to shrug their shoulders at citizens who wave their Constitutions in the air during uncertainty must not forget “[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting); cf. Korematsu v. United States, 323 U.S. 214 (1944). Indeed, it is in moments of insecurity that our constitutional bells ring the loudest.

Why even suppose that checking police power in these circumstances would lead to

some communities falling into a Hobbesian state of nature? It’s unclear. Judge Wilkinson 35

supports this slippery slope argument in a couple of mutually incompatible and individually questionable ways. He mentions Professor Rod K. Brunson’s work on policing to bolster the view that our decision here will further entrench the perception that police fail to serve those in disadvantaged communities. But Professor Brunson has long argued that this perception is largely created by aggressive policing strategies and discourteous treatment of members in their community. See, e.g., Rod K. Brunson, “Police Don’t Like Black People”: African-American Young Men’s Accumulated Police Experiences, 6(1) Criminology & Pub. Pol’y 71 (2007). Indeed, Professor Brunson has noted that “arrests and successful prosecutions are unlikely without cooperating witnesses.” Rod K. Brunson, Protests focus on Over-policing. But under-policing is also Deadly, Wash. Post, June 12, 2020. And those from disadvantaged communities “want a different kind of policing than the aggressive approaches they typically see—one that values their humanity.” Id.; see also Estate of Jones v. City of Martinsburg, W. Va., –– F.3d ––, 2020 WL 3053386, at *7 (4th Cir. 2020) (recognizing a “desperate need” for more and different police training).

From this perspective, the video of the present incident mimics the aggressive, discourteous, and ineffective policing that concern many. As the officers approached the scene seconds after gunshots rang out, the members of this community, including Curry, pointed them in the direction in which the perpetrator was likely to be found. Because, as Judge Diaz notes in his concurrence, it would have been difficult for the officers “to determine whether any firearm (which, of course, are generally lawful to possess) seized in the effort to identify the suspect was the source of the gunfire,” Judge Diaz Op. at 57,

one would think that the officers’ best hope for finding the shooter was to accept the 36

guidance offered by community members. See Black, 707 F.3d at 540 (“Being a felon in possession of a firearm is not the default status.”). That, of course, was not the case here. Cf. Miranda Fricker, Epistemic Injustice 4 (2007) (describing the notion of “testimonial injustice,” where a speaker suffers from deflated credibility owing to an identity prejudice on the hearer’s part). The officers ignored the assistance and the shooter got away. Like most citizens, it is likely that residents of the Creighton Court community do not want police officers to be tough on crime, or weak on crime—they want them to be smart on crime.

No doubt it is beyond the scope of our roles to explain to any institution what it means to be smart on crime. I will leave that to our clever colleagues in the chambers of City Council. But it is “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). Thus, “[i]n some circumstances . . . we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures,” and that those protections extend to all people in all communities. Black, 707 F.3d at 534. This is one of those circumstances.

Contrary to Judge Wilkinson’s suggestion, our decision today does not deliver “a gut-punch to predictive policing.” Wilkinson Dis. Op. at 71. As Judge Wilkinson notes, predictive policing programs “differ in their details,” but generally seek to use “smart policies” to “affirmatively prevent crime from happening, rather than just solve it.” Id. at 65; see also Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion, 62 Emory L.J. 259, 265 (2012) (“In simple terms, predictive policing involves computer

models that predict areas of future crime locations from past crime statistics and other 37

data.”). But see id. at 321 (“Predictive policing may well become an effective tool for law enforcement. Yet, the technology will also create tension for police in defending Fourth Amendment challenges by defendants.”); Andrew Guthrie Ferguson, Policing Predictive Policing, 94 Wash. U. L. Rev. 1113, 1149 (2017) (“More bluntly, the initial predictive policing projects have raised the question of whether this data-driven focus serves merely to enable, or even justify, a high-tech version of racial profiling.”). But, as with all policies, the devil is going to lie in those details. Nothing in the majority Opinion prevents the police from using, in good faith with constitutional principles, smart policies to identify where crimes may occur and accordingly dispatching officers to those neighborhoods. But it is how they, upon arrival, engage with the people in those neighborhoods that is important here. A suspicionless, investigatory stop was not warranted under the circumstances. Affirming our long-standing rules is nothing novel. If merely preventing crime was enough to pass constitutional muster, the authority of the Fourth Amendment would become moot.

Don’t get me wrong—I understand the frustrations and uncertainties that attend most discussions of how to abate crime. As a country, we are in a moment of reckoning. And the unpredictability of the future encourages us to want to hang on to those entities that make us feel secure. Still, “[t]he facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic.” Black, 707 F.3d at 542. The “lifelines a fragile community retains against physical harm and mental despair,” Wilkinson Dis. Op. at 70, must be the assurance that there truly is equal protection under law. Thus, “[i]n the words of Dr. Martin Luther King Jr., we are

[once again] reminded that ‘we are tied together in a single garment of destiny, caught in 38

an inescapable network of mutuality,’ [and] that our individual freedom is inextricably bound to the freedom of others.” Black, 707 F.3d at 542. It is with these truths that I join my colleagues in the majority in ensuring that “the Fourth Amendment rights of all individuals are protected.” Id. (emphasis in original).

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

You can read the majority, Judge Wilkinson’s tone-deaf dissent, and all of the other opinions at the above link.

To be honest, Judge Wilkinson’s opinion sounded like Jeff Sessions’s racist blather about how African American communities didn’t really want the DOJ to interfere with police brutality because it protected them from crime. And, according to “Sessions’ theory,” more crime originated in communities of color so they of course disproportionally benefitted from “aggressive” (mostly White) police tactics. That’s how we got to George Floyd and the backlash against police violence directed at communities of color.

Well, at least the 4th Circuit allows spirited dissent. That’s unlike today’s BIA that papers over the festering issues of racism and injustice in today’s bias-driven immigration enforcement and legal perversion of human rights with fake unanimity and mindless “go along to get alongism.”

Institutional racism and “Dred Scottification” of the “other” unfortunately are deeply ingrained in our Federal Court System. It’s very clear in the Supremes’ majority’s enabling of the Trump/Miller race-driven White Nationalist Agenda under various transparent “pretexts,” mainly relating to clearly bogus national emergencies or fabricated national security concerns. It ran throughout the majority’s “greenlighting” of the “Travel (“Muslim”) Ban,” “Remain in Mexico” (“Let “em Die In Mexico”),  “Expedited Removal (“Systematic Dismantling of Due Process For Asylum Applicants”), “The Wall,” “Public Charge” (“Let’s Terrorize Ethnic Communities”), and “Punishing Sanctuary Cities” (“Attacking Those Who Dare Stand Against ICE Abuses”), sometimes without even deigning to provide a rationale. 

Obviously, due process for “persons” in the United States under the Fifth Amendment means little or nothing to Justices who view migrants as sub-human with lives not worth protecting or even caring about. For these unfortunates, “due process” means something that would be totally unacceptable if applied to the Justices themselves, their families, or to those (largely White) folks to whom they are willing to extend constitutional protections. Sound familiar? It should, for anyone who has ever visited the  Holocaust Museum. 

As the vile racism and overt White Nationalism of the Trump regime unfold in full ugliness and irrationality during the final stages of the 2020 campaign, the abject failure of Roberts and his colleagues to recognize and enforce the constitutional rights and humanity of every person in the U.S.(including those actually here or at our borders but “fictionalized” by disingenuous judges into “non-presence”) comes into full focus.

America needs and deserves better Federal Judges at all levels from the Supremes to the Immigration Courts. Judges who will cut through the many layers of historical BS and racism-covering gobbledygook and make equal justice for all a reality in America. 

“Injustice anywhere is a threat to justice everywhere.” What if we finally had courts comprised of courageous, principled Justices and Judges who believed Dr. King’s words and acted accordingly, rather than merely mouthing them in ceremonies every January?

Due Process Forever! Complicit courts that cover for the Trump/Miller White Nationalist agenda, never!

PWS

07-16-20

😰YET ANOTHER  SAD DAY FOR  AMERICAN JUSTICE:  Competence, Professionalism, Fairness, & Human Decency Depart EOIR — Every American Who Cares About Due Process & Color Blind Justice In America Should Be Outraged About Former Acting Chief Immigration Judge Christopher Santoro’s Untimely Departure & Thankful That He Had The Guts To Speak Truth To Power!

 

https://apple.news/AHkgjeG2HQQKcxUA5LntKNg

Hamed Aleaziz reports for BuzzFeed News:

A Top Immigration Court Official Called For Impartiality In A Memo He Sent As He Resigned

The judge was replaced by the Trump administration with the former top Immigration and Customs Enforcement prosecutor.

Posted on July 3, 2020, at 1:52 p.m. ET

Hamed Aleaziz

BuzzFeed News Reporter

A leading immigration court official stepped down Thursday after sending a pointed email to court employees emphasizing the importance of the appearance of impartiality and the benefits of providing protections for people fleeing to the US. The message came on the same day the Trump administration tapped the former top Immigration and Customs Enforcement prosecutor to take his position, a move that outraged immigrant advocates.

The Trump administration selected Tracy Short, previously the lead ICE prosecutor, for the chief immigration judge role. ICE prosecutors often take up roles as immigration judges, but the selection of Short, formerly ICE’s principal legal adviser, left some claiming the move would undercut the appearance of neutrality at the court.

Christopher Santoro, the acting chief immigration judge, appeared to signal that in his message to court employees announcing his resignation.

His resignation and Short’s hiring comes as the Trump administration has undertaken a monumental overhaul of the way immigration judges work: placing quotas on the number of cases they should complete every year, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets. In the meantime, the case backlog has increased and wait times have continued to skyrocket to hundreds of days.

“There will always be those who disagree with a judge’s (or jury’s) decision and our court system is no different,” he wrote in the email on Thursday, which was obtained by BuzzFeed News. “But for the public to trust a court system, for the public to believe that a court is providing fair and equitable treatment under the law, that court system must not only dispense justice impartially but also appear to be impartial. Maintaining the appearance of impartiality and fairness can often be more difficult than being impartial and is a goal each of us – regardless of our role – must strive for every day.”

Santoro, who had himself served as a senior ICE advisor during the Obama administration, said he delivers this message in training to immigration judges and it applied to everyone involved with the court.

“Santoro’s emphasis on impartiality and protecting vulnerable populations is a sharp departure from this administration’s priorities, which have focused around speedy adjudications and reducing the backlog,” said Sarah Pierce, an analyst at the Migration Policy Institute. “Someone who recognizes the dire need for impartiality in this system has to watch a prosecutor lead the charge in his wake.”

Two Department of Justice employees said the decision to tap Short was misguided. The Office of the Chief Immigration Judge “provides overall program direction, articulates policies and procedures, and establishes priorities” for the court.

“His hiring is further confirmation that the Executive Office for Immigration Review leadership wishes EOIR to be a tool for enforcement agencies, focused on removal orders and nothing else,” said one employee, who could not speak publicly on the matter. The employee said that Santoro is “incredibly respected, and, in normal times, he would have been the chief immigration judge.”

Another DOJ employee said that Short’s appointment was “one step closer to the death knell for impartiality at the Immigration Court and more persuasive evidence that our code of American justice and fairness is not being followed at the Department of Justice.”

Ashley Tabaddor, who heads the union that represents immigration judges, said they were sad to hear of Santoro’s departure, adding that he is “a well-respected judge and will be tremendously missed.”

In his email, Santoro praised the immigration court for its work in recent years.

“Despite the many challenges thrown our way – ranging from changing priorities to lapses in appropriations to the temporary loss of our case management system to our million-plus pending caseload – you have risen to meet and exceed expectations each and every time. I have never worked with a finer group of professionals,” Santoro wrote.

He later said that the “nation benefits when we welcome those who bring different skills, perspectives, and experiences, and when we protect those who would be persecuted or tortured in their home country. We also benefit when we ensure that our laws are enforced fairly and consistently.”

Observers of the court — including current and former officials — said the email was eye opening.

“I’m heartened, but not surprised, to see Judge Santoro join the dozens of judges who have resigned from this administration and expressed a deep concern for the due process rights of vulnerable asylum seekers in our immigration court system,” said Rebecca Jamil, a former immigration judge who stepped down due to the administration’s immigration policies. “For a court system to mean anything, the public has to trust that it is fair and unbiased, and the Immigration Court simply does not have that important contract with the current Attorney General. I’m grateful that Judge Santoro reached the same conclusion that I did.”

. . . .

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

Read the rest of Hamed’s article at the link.

This is yet another disgraceful incident in three years of unconstitutional bias and failure of due process at EOIR. The competent, scholarly, fair, and impartial are driven out and replaced by unqualified politicos. 

Just heard this statement on TV in connection with yet another racially motivated killing: “We have a morality problem in America!” EOIR has both a competency and a morality problems. When will someone put an end to this unconscionable and deadly nonsense?

As I have said before, Judge Santoro was our Assistant Chief Immigration Judge during some of my time in Arlington. A “straight-up” professional who cared about both public service and the health and welfare of Court employees in very stressful situations.

What a squandering of public funds and goodwill when the competent are pushed out and replaced by those stunningly unqualified to serve in any type of judicial position, let alone one calling for ethical and moral leadership.

Thanks for your service, Chris.😎

Also, proud to be a member of the Round Table along with our courageous colleague, Judge Rebecca Jamil!

Knightess
Knightess of the Round Table

Due Process Forever!

PWS

07-03-20

🇺🇸😎⚖️🗽👍🏼LAW YOU CAN USE:  Michelle Mendez and CLINIC Publish A New Practice Advisory on Opening & Closing Statements in Immigration Court

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

 

https://cliniclegal.org/resources/litigation/practice-advisory-opening-statements-and-closing-arguments-immigration-court

Practice Advisory: Opening Statements and Closing Arguments in Immigration Court

Last UpdatedJuly 2, 2020

Topics Litigation Removal Proceedings Appeals

Opening statements and closing arguments can win cases for clients, if the practitioner is able to deliver a performance that is both concise and compelling. This practice advisory offers guidance and tips that will help practitioners deliver concise and compelling opening statements and closing arguments in immigration court.

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

Read more and download this wonderful resource at the link.

Michelle and her team @ CLINIC promise more “great stuff” next week.

Going in Opposite Directions: Ironically, as the Trump DOJ has worked overtime to “dumb down” EOIR, Michelle and many others in the Immigration & Human Rights communities, particularly AILA, other NGOs, Clinical Professors, and pro bono counsel at “Big Law,” have been working even harder to promote “best immigration and legal practices” before all tribunals. And, despite the Supreme’s “willful blindness” to the Constitution, the rule of law, and human dignity as it applies to asylum seekers and migrants, the results are showing elsewhere in the justice system. 

It also points to the obvious unconscionably overlooked untapped source for better Federal Judges in the future, from the Supremes to the Immigration Courts: the pro bono and clinical immigration and human rights bars — actually the main fount of courageous opposition to the regime’s concerted attack on our Constitution, our justice system, and our humanity. 

If these folks and others like them were on the Supremes, American justice wouldn’t be in shambles and equal justice justice for all under our Constitution would actually be enforced, rather than degraded or intentionally skirted with legal gobbledygook. The lack of both legal and moral leadership from our highest Court in the face of a clearly out of control and unqualified White Nationalist Executive and his toadies is simply astounding, not to mention discouraging. 

It’s little wonder that the tensions caused in no small measure by the Court’s systemic failure to stand up for voting rights, civil rights, the rights of other persons of color in the U.S., and to hold abusers at all levels accountable, is now overflowing into the streets. No, an occasional vote for a correct result from Roberts or another member of “The Five” is not going to solve the problem of Constitutional, racial, and moral dereliction of duty by our highest Court.

Almost every day, “real” Article III Lower Courts “out” some aspect of the outrageously biased and unprofessional performance of EOIR and the rest of Trump’s immigration kakistocracy before the courts. Even some GOP and Trump appointed Article III Judges have “had enough” and don’t want their professional reputations and consciences sullied by association with the regime’s unlawful White Nationalist agenda.

Unfortunately, however, the Federal Courts generally have failed to follow through by sanctioning the often unethical and dishonest performance of the regime in court and by shutting down EOIR’s unconstitutional “kangaroo courts,” DHS’s equally unconstitutional “New American Gulag,” and the fraudulent operation of bogus “Safe Third County Agreements,” “Remain in Mexico,” and patiently disingenuous ridiculously overbroad COVID-19 “immigration bars” (which are actually thin cover for Stephen Miller’s preconceived White Nationalist nativist agenda). Moreover, lower Federal Court Judges who courageously stand up against the regime’s unconstitutional agenda and program of “dehumanization” are too often improperly undermined by the Supremes (sometimes without explanations or “short circuiting” the system), thereby “greenlighting” further “crimes against humanity” by an unscrupulous and unethical Executive.

We’re making a permanent record of both the “crimes against humanity” committed by the regime and those public officials, be they so-called “public servants,” feckless legislators, or life-tenured judges who have actively aided, abetted, been complicit, or “gone along to get along” with Trump’s countless lies and abuses. Later judicial “corrections” by a better Court or legislative “fixes” by a real Congress will not reclaim the lives of those shot on the streets by police, infected with COVID-19 in the Gulag, kidnapped and abused by gangs in Mexico while waiting for fake hearings, or “rocketed” back to persecution and torture in the Northern Triangle and elsewhere in violation of U.S. and international laws without any meaningful process at all. Nor will they wipe out the abuses by governments at all levels elected without the full participation of American citizens of color and in poverty whose votes were purposely suppressed or political authority diminished by corrupt GOP pols and their Supreme enablers. 

As we can see by the long-overdue historical reckoning coming to Confederates and other racists who actively worked to undermine our Constitution, block equal justice for all, and dehumanize other humans in America, there will be an eventual historical reckoning here, and justice ultimately will be served, even if not in our lifetimes. That’s bad news for Roberts, his right-wing colleagues, and a host of others who have willfully enabled the worst, most abusive, and most clearly lawless presidency in U.S. History, as well as the most overtly racist regime since Woodrow Wilson.

Due Process Forever!

This November, vote like your life depends on it! Because it does!

JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & BE PART OF THE SOLUTION TO UNEQUAL JUSTICE IN AMERICA!

PWS

07-03-20

FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🏴‍☠️⚰️☠️👎

 

https://www.thenation.com/authors/felipe-de-la-hoz/

 

Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.

Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.

Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.

TOP ARTICLES2/5READ MOREPence Masks Up While Trump Keeps Dog-Whistling

Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.

Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”

The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.

Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.

Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.

“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.

While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

. . . .

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

 

Read the rest of Filipe’s article at the link.

 

Filipe’s final point in the article is one we should all keep in mind:

 

For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.

The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.

I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.

Due Process Forever!

PWS

06-30–20

 

“PEREIRA II” — SUPREMES TAKE ANOTHER “STOP TIME” IMMIGRATION CASE —  Niz-Chavez v. Barr

Amy Howe
Amy Howe
Freelance Journalist, Court Reporter
Scotusblog

https://www.scotusblog.com/2020/06/court-grants-immigration-case/

Amy Howe reports for SCOTUS Blog:

Court grants immigration case

This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.

With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.

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Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.

At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS,  138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice. 

In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.

The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results. 

And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes of  both “judicial task avoidance” and the White Nationalist agenda of the Administration.

Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.

While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.

Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals.  Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following a  racially-biased agenda of dehumanization, degradation, and deportation.

Due Process Forever!

PWS

06-08-20

⚖️👍🏼🗽DUE PROCESS VICTORY: US District Judge Requires Baltimore Immigration Court to Comply With Due Process in Bond Hearings! — Round Table Warrior Judge Denise Noonan Slavin Provides Key Evidence! — Miranda v. Barr!

Miranda v. Barr, U.S.D.C. D. MD., U.S. District Judge Catherine C. Blake, 05-29-20

Preliminary Injunction Memo

KEY QUOTES:

. . . .

A. Likelihood of success on the merits

i. Due process claim: burden of proof

The lead plaintiffs claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the government bears the burden of proving, by clear and convincing evidence, dangerousness or risk of flight. As explained above, neither the INA nor its implementing regulations speak to the burden of proof at § 1226(a) bond hearings, and the BIA has held that the burden lies with the noncitizen. See Guerra, 24 I. & N. Dec. at 37, 40. But, as the lead plaintiffs point out, when faced with challenges to the constitutionality of these hearings, district courts in the First, Second, Ninth, and Tenth Circuits have concluded that due process requires that the government bear the burden of justifying a noncitizen’s § 1226(a) detention. See, e.g., Singh v. Barr, 400 F. Supp. 3d 1005, 1017 (S.D. Cal. 2019) (“[T]he Fifth Amendment’s Due Process Clause requires the Government to bear the burden of proving . . . that continued detention is justified at a § 1226(a) bond redetermination hearing.”); Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *11 (D. Colo. July 2, 2019) (same); Darko v. Sessions, 342 F. Supp. 3d 429, 436 (S.D.N.Y. 2018) (same); Pensamiento, 315 F. Supp. 3d at 692 (same). While jurisdictions vary on the standard of proof required, compare, e.g., Darko, 342 F. Supp. 3d at 436 (clear and convincing standard) with Pensamiento, 315 F. Supp. 3d at 693 (“to the satisfaction of the IJ” standard), the “consensus view” is that due process requires that the burden lie with the government, see Darko, 342 F. Supp. 3d at 435 (collecting cases).

The defendants concede that “a growing chorus of district courts” have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings. (Opp’n at 22). But the defendants also point out that some courts to consider the issue have

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concluded otherwise. In Borbot v. Warden Hudson Cty. Corr. Facility, the Third Circuit analyzed a § 1226(a) detainee’s claim that due process entitled him to a second bond hearing where “[t]he duration of [] detention [was] the sole basis for [the] due process challenge.” 906 F.3d 274, 276 (3d Cir. 2018). The Borbot court noted that the detainee “[did] not challenge the adequacy of his initial bond hearing,” id. at 276–77, and ultimately held that it “need not decide when, if ever, the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond hearing,” id. at 280. But, in analyzing the detainee’s claims, the Borbot court stated that it “perceive[d] no problem” with requiring that § 1226(a) detainees bear the burden of proof at bond hearings. Id. at 279. Several district courts in the Third Circuit have subsequently concluded that Borbot compels a finding that due process does not require that the government bear the burden of proof at § 1226(a) bond hearings. See, e.g., Gomez v. Barr, No. 1:19-CV- 01818, 2020 WL 1504735, at *3 (M.D. Pa. Mar. 30, 2020) (collecting cases).

Based on its survey of the case law, the court is more persuaded by the reasoning of the district courts in the First, Second, Ninth, and Tenth Circuits. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690 (citation omitted). While detention pending removal is “a constitutionally valid aspect of the deportation process,” such detention must comport with due process. See Demore v. Kim, 538 U.S. 510, 523 (2003). Although the Supreme Court has not decided the proper allocation of the burden of proof in § 1226(a) bond hearings, it has held, in other civil commitment contexts, that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” See Addington v. Texas, 441 U.S. 418, 427 (1979)

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(addressing the standard of proof required for mental illness-based civil commitment) (emphasis added).

Application of the Mathews v. Eldridge balancing test lends further support to the lead plaintiffs’ contention that due process requires a bond hearing where the government bears the burden of proof. In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. 319, 335 (1976). While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof. (See Decl. of Former Immigration Judge Denise Noonan Slavin ¶ 6, ECF 1-8 (“On numerous occasions, pro se individuals appeared before me for custody hearings without understanding what was required to meet their burden of proof. . . . Pro se individuals were rarely prepared to present evidence at the first custody hearing[.]”))

With respect to the quantum of proof required at § 1226(a) bond hearings, the court notes that “the overwhelming majority of district courts have . . . held that, in bond hearings under § 1226(a), due process requires the government to bear the burden of justifying detention by clear and convincing evidence.” Hernandez-Lara v. Immigration & Customs Enf’t, Acting Dir., No.

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19-CV-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) (collecting cases). As the Hernandez-Lara court reasoned, “[p]lacing the burden of proof on the government at a § 1226(a) hearing to show by clear and convincing evidence that the noncriminal alien should be detained pending completion of deportation proceedings is more faithful to Addington and other civil commitment cases,” id. at *6, “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’—deprivation of liberty—is so significant,” id. (quoting Singh v. Holder, 638 F.3d 1196, 1203–04 (9th Cir. 2011)) (further citation omitted).

Moreover, on the quantum of proof question, the court finds instructive evolving jurisprudence on challenges to prolonged detention pursuant to 8 U.S.C. § 1226(c). As noted in note 2, supra, § 1226(c) mandates detention of noncitizens deemed deportable because of their convictions for certain crimes. See Jennings, 138 S. Ct. at 846. Although § 1226(c) “does not on its face limit the length of the detention it authorizes,” id., the Supreme Court has not foreclosed the possibility that unreasonably prolonged detention under § 1226(c) violates due process, id. at 851. Indeed, many courts have held that when § 1226(c) becomes unreasonably prolonged, a detainee must be afforded a bond hearing. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018); Jarpa, 211 F. Supp. 3d at 717. Notably, courts in this district and elsewhere have ordered § 1226(c) bond hearings where the government bears the burden of justifying continued detention by clear and convincing evidence. See Duncan v. Kavanagh, — F. Supp. 3d —-, 2020 WL 619173, at *10 (D. Md. Feb. 10, 2020); Reid, 390 F. Supp. 3d at 228; Portillo, 322 F. Supp. 3d at 709–10; Jarpa, 211 F. Supp. 3d at 721. As the Jarpa court explained, “against the backdrop of well-settled jurisprudence on the quantum and burden of proof required to pass constitutional muster in civil detention

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proceedings generally, it makes little sense to give Mr. Jarpa at this stage fewer procedural protections than those provided to” civil detainees in other contexts. See Jarpa, 211 F. Supp. 3d at 722 (citing United States v. Comstock, 627 F.3d 513 (4th Cir. 2010)).

In light of the above, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires § 1226(a) bond hearings where the government must bear the burden of proving dangerousness or risk of flight. As to the quantum of proof required at these hearings, the court is persuaded that requiring a clear and convincing standard is in line with the Supreme Court’s reasoning in Addington, as well as consistent with the bond hearings ordered in cases involving § 1226(c) detention.

ii. Due process claim: ability to pay and suitability for release on alternative conditions of release

The lead plaintiffs also claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the IJ considers the noncitizen’s ability to pay a set bond amount and her suitability for release on alternative conditions of supervision. The defendants counter that due process does not so require, and also asserts that at Mr. de la Cruz Espinoza’s bond hearing, the IJ did consider his ability to pay, (Opp’n at 26).

As an initial matter, the court considers whether the IJ at Mr. de la Cruz Espinoza’s bond hearing considered his ability to pay. According to the Complaint, there is no requirement that IJs in Baltimore Immigration Court consider an individual’s ability to pay when setting a bond amount. (Compl. ¶ 27 & n.8). The defendants assert that because Mr. de la Cruz Espinoza’s motion for bond included arguments about his financial situation, the IJ did, in fact, consider his ability to pay. (Opp’n at 26). The court is not persuaded. The fact that an argument was raised does not ipso facto mean it was considered. Neither the transcript of Mr. de la Cruz Espinoza’s bond hearing, (ECF 15-11), nor the IJ’s order of bond, (ECF 1-18), suggest that the IJ actually

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considered ability to pay. Accordingly, without clear evidence to the contrary, the court accepts the lead plaintiffs’ allegation that the IJ did not consider Mr. de la Cruz Espinoza’s ability to pay when setting bond.

The question remains whether due process requires that an IJ consider ability to pay and suitability for alternative conditions of release at a § 1226(a) bond hearing. As explained above, detention pending removal must comport with due process. See Demore, 538 U.S. at 523. Due process requires that detention “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” See Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Federal regulations and BIA decisional law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure the noncitizen’s appearance at future proceedings. See 8 C.F.R. §§ 1003.19, 1236.1; Guerra, 24 I. & N. Dec. at 38. But, the lead plaintiffs argue, when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances.

Several courts to consider the question have concluded that § 1226(a) detention resulting from a prohibitively high bond amount is not reasonably related to the purposes of § 1226(a). In Hernandez v. Sessions, the Ninth Circuit held that “consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, [is] necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings[.]” See 872 F.3d at 990–91. While the Hernandez court did not explicitly conclude that a bond hearing without those considerations violates due process, see id. at 991 (“due process likely requires consideration of financial circumstances and alternative conditions of release” (emphasis added)), the court in Brito did reach that conclusion, see 415 F.

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Supp. 3d at 267. The Brito court held that, with respect to § 1226(a) bond hearings, “due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.” Id. at 267. Relatedly, in Abdi v. Nielsen, 287 F. Supp. 3d 327 (W.D.N.Y. 2018), which involved noncitizens held in civil immigration

9

detentionpursuantto8U.S.C.§1225(b), thecourt—relyingontheNinthCircuit’sreasoningin

Hernandez—held that “an IJ must consider ability to pay and alternative conditions of release in setting bond for an individual detained under § 1225(b).” Id. at 338. To hold otherwise, the Abdi court reasoned, would implicate “the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to § 1225(b).”10

The court is persuaded by the reasoning of Hernandez, Brito, and Abdi. If an IJ does not make a finding of dangerousness or substantial risk of flight requiring detention without bond (as in Mr. de la Cruz Espinoza’s case), the only remaining purpose of § 1226(a) detention is to

11

that an individual may not be imprisoned “solely because of his lack of financial resources.” See

9 8 U.S.C. § 1225(b) authorizes indefinite, mandatory detention for certain classes of noncitizens. See Jennings, 138 S. Ct. at 842 (citing 8 U.S.C. §§ 1225(b)(1) and (b)(2)).

10 The court notes that both Hernandez and Abdi reference now-invalidated precedent in both the Ninth and Second Circuits requiring the government to provide civil immigration detainees periodic bond hearings every six months. See Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852. But Jennings, which was decided on statutory interpretation grounds, explicitly did not include a constitutional holding. See Jennings, 138 S. Ct. at 851 (“[W]e do not reach th[e] [constitutional] arguments.”). And, as the Hernandez court noted, “the Supreme Court’s review of our holding . . . that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.” 872 F.3d at 983 n.8.

11 The defendants offer no purpose for § 1226(a) detention beyond protecting the community and securing a noncitizen’s appearance at future proceedings.

The set bond amount, then, must be reasonably related to this purpose. But where a bond amount is set too high for an individual to pay, she is effectively detained without bond due to her financial circumstances. It is axiomatic

secure a noncitizen’s appearance at future proceeding.

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Bearden v. Georgia, 461 U.S. 660, 661–62, 665 (1983) (automatic revocation of probation for inability to pay a fine, without considering whether efforts had been made to pay the fine, violated due process and equal protection); cf. Tate v. Short, 401 U.S. 395, 398 (1971) (“The Constitution[’s equal protection clause] prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights “to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.” See Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)) (quotation marks omitted); accord ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018); see also Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976); accord Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997).

There is no suggestion that the IJs in Baltimore Immigration Court impose prohibitively high bond amounts with the intent of denying release to noncitizens who do not have the means to pay. But without consideration of a § 1226(a) detainee’s ability to pay, where a noncitizen remains detained due to her financial circumstances, the purpose of her detention—the lodestar of the due process analysis—becomes less clear. As the Ninth Circuit explained,

Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. . . . [It is a] common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose.

Hernandez, 872 F.3d at 991.

The defendants assert that an IJ need not consider a noncitizen’s ability to pay a set bond

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amount because it had a “reasonable basis to enact a statute that grants the Executive branch discretion to set bonds to prevent individuals, whose ‘continuing presence in the country is in violation of the immigration laws,’ from failing to appear,” and that § 1226(a) passes muster under rational basis review. (Opp’n at 25–26 (quoting Reno v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 491 (1999)). But the appropriate analysis for a procedural due process challenge is the Mathews balancing test, not rational basis review, which is used to analyze equal protection claims, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981), and substantive due process claims, see, e.g., Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). And, in applying the Mathews test, the court agrees with the Ninth Circuit’s conclusion that “the government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of [] a requirement [that ICE and IJs consider financial circumstances and alternative conditions of release] are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.” See Hernandez, 872 F.3d at 993.

Accordingly, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires a § 1226(a) bond hearing where the IJ considers a noncitizen’s ability to pay a set bond amount and the noncitizen’s suitability for alternative conditions of release.

Y. . . .

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

Thanks and congratulations to Judge Denise Slavin for “making a difference.” It’s a true honor to serve with you and our other colleagues in the Round Table of Former Immigration Judges! Judge Slavin’s Declaration is cited by Judge Blake at the end of the first full paragraph above “17” in the quoted excerpt.

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Knightess
Knightess of the Round Table

To be brutally honest about it, Denise is exactly the type of scholarly, courageous, due-process-oriented Immigration Judge who in a functioning, merit-based system, focused on “using teamwork and innovation to develop best practices and guarantee fairness and due process for all” would have made an outstanding and deserving Appellate Immigration Judge on the BIA. Instead, in the totally dysfunctional “World of EOIR,” the “best and brightest” judges, like Denise, essentially are “pushed out the door” instead of being honored and given meaningful opportunities to use their exceptional skills to further the cause of justice, establish and reinforce “best judicial practices,” and serve as outstanding role models for others. What an unconscionable waste!

It’s a great decision! The bad news: Because the Immigration Courts remain improperly captive within a scofflaw, anti-immigrant, and anti-due-process DOJ, respondents in many other jurisdictions will continue to be denied the fundamentally fair bond hearings required by Constitutional Due Process.

Due Process Forever!

PWS

05-30-20

⚖️💰JUSTICE FOR SALE: DOJ ATTEMPTED TO “BUY OUT” “HOLDOVER” BIA MEMBERS TO CLEAR THE WAY FOR AGGRESSIVELY NATIVIST AGENDA — It Failed, But The Anti-Immigrant, Anti-Asylum, Anti-Due Process Tilt Still Took Place!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

Tanvi Misra reports for Roll Call:

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

DOJ memo offered to buy out immigration board members

The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office

pastedGraphic.png

The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)

By Tanvi Misra

Posted May 27, 2020 at 5:04pm

The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.

An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.

EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.

According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.

CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”

“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.

The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.

In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.

The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.

“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”

Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.

While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.

“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”

The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.

“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.

“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.

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

The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.

This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.” 

Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time.  So, I rejected it, and eventually got a much better “deal.” 

The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue. 

Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.

Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.

Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.

Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.

It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.

The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).

Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.

As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.

Due Process Forever, Captive & Complicit Courts, Never!

PWS

05-28-20

UPDATE:

Benjamin Johnson
Benjamin Johnson
Executive Director
AILA

AILA Statement on BIA:

AILA: EOIR Director Attempts to Buy Out Remaining Board Members to Solidify Control of Immigration Courts

 

AILA Doc. No. 20052830 | Dated May 28, 2020

Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.

 

AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”

 

“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”

 

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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.

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The BIA is a travesty, to be sure.  But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v.  Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.

If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!

Due Process Forever!

PWS

05-28-20

 

NO EXPERIENCE REQUIRED: Barr Awards 2 of 4 New Supervisory Judge Positions @ EOIR to Immigration Neophytes — Just Keep The Deportation RR Running Full-Speed Ahead Into The Abyss!

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

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/barr-appoints-four-new-acijs-two-have-no-experience

Barr Appoints Four New ACIJs; Two Have No Experience

[NOTE: Two of the four new ACIJs have no immigration law experience, yet they will hear cases.]

EOIR, May 22, 2020

“The Executive Office for Immigration Review (EOIR) today announced four new assistant chief immigration judges (ACIJs). ACIJs are responsible for overseeing the operations of the immigration courts to which they are assigned. In addition to their management responsibilities, these Attorney General appointees will hear cases. Biographical information follows…”

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Get the full EOIR announcement at the link

The deadly ☠️  judicial farce at EOIR continues, unabated, as lives and the law are treated as meaningless in a “court” system run by enforcement politicos.

Apparently, at today’s EOIR all you need to hear cases is the willingness to check “deny” and “remove” on the form orders and to exhort others to “go along to get along!”

Due Process Forever! Captive Courts, Never!

PWS

05-26-20