Honorable A. Ashley Tabaddor – Page 2 – immigrationcourtside.com

@THE SUPREMES⚖️👩🏻‍⚖️: Round Table🛡, ACLU 🗽Push Back Against S.G. Francisco’s 🤮False/Misleading Narratives! – NO, Migrants Seeking Mandatory Protection From Persecution In “Withholding Only Proceedings” Are NOT “Just Like Any Other Deportable Individuals” – NO, Providing Due Process In Bond Hearings Will NOT “Overload” The System — It’s A Significant, Yet Routine, Part Of Any Immigration Judge’s Job! – What “Overloads” The System Is The Race-Driven “Malicious Incompetence” Of Trump’s DOJ/EOIR!

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

Asher Stockler reports for Law360:

. . . .

But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.

The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the

https://www.law360.com/articles/1327892/print?section=appellate 1/2

11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360

deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.

The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”

“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.

But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.

“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.

The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.

The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.

The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.

–Editing by Michael Watanabe.

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

Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.

That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!

Many, many, many thanks to our all-star pro bono team:

David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

Couldn’t have done it without you guys! You constantly “Make us look smart!”

You can read our complete amicus brief here:

19-897 bsac Immigration Judges

According to “Round Table Oracle,” Sir Jeffrey S. Chase, this is our sixth filed Supreme Court amicus brief, with another currently in the pipeline.

And, they do make a difference! For those who missed it, the Round Table amicus in Niz-Chavez v. Barr was specifically mentioned during oral argument before the Court: https://www.c-span.org/video/?471191-1/niz-chavez-v-barr-attorney-general-oral-argument

I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:

Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.

Well done, fearless fighters for due process!

Rachel McFarland
Legal Aid Justice Center
Charter Member, New Due Process Army

This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.

Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.

I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.

Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.

Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!

The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!

Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.

It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.

It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.

It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.

Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)

Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!

The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.

The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!

And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.

The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.

American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”

And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:

Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

PWS

11-14-20

⚖️👨🏻‍⚖️👩‍⚖️CHANNELING THE OUTRAGE AT THE FLRA’S OVERT UNION, DUE PROCESS, AND FIRST AMENDMENT BASHING! — Read Jeffrey S. Chase’s Penetratingly Indignant Analysis Of This Sham Decision — Regime’s Larger Plan To Abolish Unions, Politicize, & “Dumb Down” Career Civil Service Should Be D.O.A. In Biden-Harris Administration!

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/11/6/the-outrageous-decision-to-decertify-the-ijs-union&source=gmail-imap&ust=1605304468000000&usg=AOvVaw15nn5hFuo-vhDvBl2kSJF4

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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The Outrageous Decision to Decertify the IJ’s Union

Our attention is understandably focused elsewhere right now. However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union. While this might seem to be a minor issue at the moment, it is not. At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.

The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago. It weathered a similar decertification effort in 2000. Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize. Under federal labor law, one is classified as a manager if their position “influences policy.” 20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion. In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy. The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”

In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novo review, their findings of fact are now reviewed for clear error. Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy. So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification. At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision. As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.” Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.

The Regional Director dismissed the claim based on the above arguments and testimony. But there was always a sense that the administration had something up its sleeve. That “something” turned out to be two Trump appointees, FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott. They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them. The two stayed true to form in decertifying the NAIJ. The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion in the NAIJ’s case, which concluded with the following language:

This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”

By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.

First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach. Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards). As several leading scholars explained in an article in Slate: “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”

But of great importance is a point I raised last year in an article I wrote for Law360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:

while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ. In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views. Such actions would constitute a troubling attempt by the executive branch to influence case outcomes. Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.

Just prior to the FLRA’s decision, an executive order creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views). By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order. To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.

While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant. First, the earlier decertification effort in 2000 occurred under a Democratic administration. Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration. Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.

The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term. It is therefore hoped that readers will amplify the news of the decision and all it means. It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision. And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct

There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration. FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent. But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.

Copyright 2020 Jeffrey S. Chase. All rights reserved. reprinted with permission.

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Thanks for speaking out so forcefully and articulately, my friend,

I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.

Due Process Forever!

PWS

11-09-20

“PURE SOPHISTRY” 🤮— POLITICIZED FLRA MAJORITY REVERSES REGIONAL DIRECTOR, BUSTS IMMIGRATION JUDGES’ UNION!— NAIJ President Judge Ashley Tabaddor Pledges To Continue Fight For Due Process Rights Of Migrants & 1st Amendment Rights Of Judges!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Here’s a message Judge Tabaddor sent to all Immigration Judges:

Subject: Update on Agency Action to Decertify NAIJ

THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

November 3, 2020

Dear Colleagues,

Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”

This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.

We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.

Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.

As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.

Ashley Tabaddor

President, NAIJ

—

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Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court!

Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!

Due Process Forever!

PWS

11-05-20

🦘🏴‍☠️☠️⚰️⚖️👎🏻🤮“KANGAROO KOURTS” MUST GO: NY City Bar Blasts Billy The Bigot Barr’s Deadly Immigration Court Farce, Calls For Article I! — “This step is now more crucial than ever, as ‘the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.’”

Kangaroos
https://www.flickr.com/photos/rasputin243/
Creative Commons License

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

City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court

October 21, 2020

The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”

The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”

According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”

The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.

As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”

The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”

The report can be read here: https://bit.ly/31tFEpm

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Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.

“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!

There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOP Senate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

PWS

1-22-20

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON AILA LITIGATION ABOUT NEW JERSEY IMMIGRATION COURTS⚖️!

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

ROUND TABLE STAR 🌟 HON. SUE ROY REPORTS ON NJ AILA LITIGATION ABOUT IMMIGRATION COURTS⚖️!

By Hon. Sue Roy

Former U.S. Immigration Judge

Exclusive to Courtside

Oct. 8, 2020

As Paul had written about in August, the New Jersey chapter of the American Immigration Lawyers Association (AILA-NJ) filed a complaint against the Department of Justice/Executive Office for Immigration Review (DOJ/EOIR) over the arbitrary re-opening of the Newark Immigration Court for in-person hearings on July 13, 2020, without proper COVID-19 safety procedures and protocols in place.

This is despite the fact that in March, numerous individuals contracted COVID-19 because the Court did not timely close at the outset of the pandemic. To date, a well-respected immigration attorney who was present in the building during that time passed away from COVID-19 complications. Three additional people who worked in the building have also passed away from COVID-19, and many individuals became quite ill due to the exposure; some of whom have permanent health complications as a result.

As of now, most courts in NJ remain closed; courts at the municipal, country, state, and federal level have successfully utilized either telephonic or televideo technology to ensure that cases move forward. In fact, the NJ District Court is literally next door to the Newark Immigration Court; it remains closed, and the U.S. Attorney’s Office, which is located in the same building as the Newark Immigration Court, remains closed as well.

Before filing the lawsuit, AILA-NJ asked EOIR to provide them with information regarding what safeguards were going to be implemented at the time of reopening, but EOIR declined to respond.

It should be noted that the National Association of Immigration Judges (NAIJ) has been seeking the same information from EOIR, and EOIR has refused to release information to NAIJ as well.

Accordingly, AILA-NJ, through the pro bono representation of Gibbons, P.C., filed a complaint and an injunction request in the NJ District Court. DOJ, represented by the U.S. Attorney’s Office, advised the Court that it was not their responsibility to ensure the safety of individuals utilizing the Court; it was the parties’ responsibility to follow proper COVID-19 safety protocols. While Judge Vasquez did not grant the injunction, he was extremely critical of DOJ’s position, calling it “shocking” and “disheartening.” He noted that it was impossible for him to determine if EOIR had acted in an arbitrary and capricious manner in reopening the Newark Immigration Court without being advised as to what went into the decision-making process.

Two and ½ weeks ago, DOJ asked for a 2-week extension to file their responses to Judge Vasquez’s requests for information regarding EOIR’s safety plans, any policy discussions/memoranda from the various agencies who were allegedly involved in the decision to reopen Newark Immigration Court in July. DOJ also indicated that, despite previously stating that televideo proceedings were not possible, they were looking into setting them up at Newark. AILA-NJ agreed to the continuance request.

The Newark Immigration Court has held a few televideo hearings over the past two weeks. Attorneys are required to have their clients present with them in their offices when appearing before the Court. One attorney who was forced to do this tested positive for COVD-19 two days later and is now in quarantine.

Instead of then complying with Judge’s Vasquez’s order, last Thursday, DOJ filed a letter brief asking the Judge to dismiss the lawsuit as moot. AILA-NJ offered to settle the matter through the use of a consent order; DOJ refused. Therefore, AILA-NJ has opposed the request to dismiss the lawsuit, noting the continuing safety issues, the lack of any uniform procedures for the video hearings, the fact that televideo hearings are subject to individual judges’ discretion, and other concerns.

There is a telephonic conference now scheduled before Judge Vasquez for Thursday, October 8, at 11:30 am.

As of now, televideo hearings are only being offered at Newark Immigration Court, (not nationwide) and only to AILA-NJ attorney members who request it. Non-AILA-NJ attorneys are not being offered this option, and neither are pro se litigants, who are required to appear in person for master calendar and individual hearings. Court staff, interpreters, and immigration judges are required to be physically present for hearings, thus risking exposure to COVID-19, which is currently on the rise again in New Jersey generally, and in Newark in particular.

We have always suspected that EOIR had no safety plans or protocols in place before it decided to arbitrarily reopen the Newark Immigration Court. This view is shared by the NAIJ. The fact that EOIR reversed course and set up televideo hearings in Newark in less than 2 weeks and are now seeking to not release any information demonstrates just how disingenuous and unscrupulous DOJ has become.

NAIJ, the New Jersey State Bar Association, the Hispanic Bar Association, and the Round Table of Former Immigration Judges, among others, have all issued statements in support of the AILA-NJ litigation.

Hon. Susan B. Roy is a member of the Round Table of Former Immigration Judges and the principal of Law Office of Susan G. Roy, LLC in Princeton Junction, New Jersey.

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

Thanks, Sue, for all you do for due process!

Here are links to my previous reports on the litigation:

https://immigrationcourtside.com/2020/09/05/22729/

🏴‍☠️☠️🤮👎KAKISTOCRACY WATCH: NJ AILA Sues EOIR’s Malicious Incompetents To Stop Deadly ☠️☠️☠️🤮 In-Person Hearings

Due Process Forever!

PWS

10–08-20

MARCIA BROWN @ NEW REPUBLIC — There Can Be No Due Process Without An Independent Immigration Court Staffed By Qualified Judges!

https://newrepublic.com/article/159530/best-way-protect-immigrants-whims-politics

. . . .

Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”

Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”

. . . .

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

Read the full article at the link.

Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’s mismanagement and misuse of the Immigration Courts.

Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.

Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!

Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.

Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!

First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.

Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.

It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.

Due Process Forever!

PWS

10-06-20

EXPOSING THE KAKISTOCRACY 🏴‍☠️ — LATEST TRAC “DATA DIVE” SHOWS WHY THERE ARE LIES, DAMN LIES, & EOIR’S “CRIMES AGAINST HUMANITY” ☠️🤮👎 – The Round Table & Other Immigration Experts, As Well As Some Article III Judges, Have Been Saying It Ever Since “Gonzo” Sessions’s Unethical & Dishonest Opinion In Castro-Tum: “TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. [T]he EOIR significantly misrepresented the data it used to justify this rule.”

Transactional Records Access Clearinghouse

The Life and Death of Administrative Closure

FOR IMMEDIATE RELEASE

In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.

TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.

Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.

Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.

Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.

Read the full report at:

https://trac.syr.edu/immigration/reports/623/

TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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

“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.

Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.

Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”

Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure. Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”

What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!

Due Process Forever!

PWS

09-10-20

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

Here’s an Addendum from Margaret Stock:

From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM]
Sent: Saturday, September 12, 2020 10:17 AM
To: Benson, Lenni B.
Cc: Immprof (immprof@lists.ucla.edu)
Subject: Re: [immprof] FW: The Life and Death of Administrative Closure

The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.

Sent from my iPhone

🏴‍☠️☠️⚰️🤮⚔️🛡TWO RECENT LAW360 ARTICLES HIGHLIGHT ROUNDTABLE’S SUPPORT FOR AILA’S LITIGATION AGAINST DANGEROUS CONDITIONS IN NEWARK IMMIGRATION COURT! —”It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.” — But, sadly, not very surprising to those in the “Immigration Community” forced to deal with EOIR’s now chronic disregard and disrespect for human life, on several levels, on a daily basis!

Star Chamber Justice — “Justice”
Star Chamber
Style

https://www.law360.com/immigration/articles/1306711/ex-immigration-judges-say-nj-court-risking-public-health-

Ex-Immigration Judges Say NJ Court Risking Public Health

By Sarah Martinson

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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.

In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.

The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.

“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”

In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.

The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.

The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.

The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.

“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.

In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.

A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.

AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”

“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.

Counsel for the federal government declined to comment Wednesday.

AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review et al., case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Stephen Berg.

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

https://www.law360.com/articles/1307316/nj-immigration-attys-can-t-stop-in-person-hearings-for-now

NJ Immigration Attys Can’t Stop In-Person Hearings For Now

By Jeannie O’Sullivan

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.

During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.

The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.

“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”

The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.

“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.

Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.

“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”

The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.

The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.

The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.

The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.

The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.

The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review, case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.

–Additional reporting by Jennifer Doherty and Alyssa Aquino. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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

Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮

I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?

When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?

To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!

I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!

Due Process Forever!

PWS

09-05-20

⚖️🧑🏽‍⚖️SOURCE OF RACIAL TENSION & ENDEMIC INEQUALITY 🤮: U.S. COURTS: Nan Aron Of Alliance For Justice Speaks Out On Why We Need Progressive Judges!

https://www.washingtonpost.com/politics/trump-biden-supreme-court/2020/08/28/0f0a8158-e937-11ea-bc79-834454439a44_story.html

By Seung Min Kim in the WashPost:

. . . .

But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.

The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.

“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.

She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”

. . . .

************************
Read the full article at the link,

Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.

Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:

- Ridiculously convoluted and entirely unnecessary 2-year hiring process (under former Director Anthony C. Moscato, the Clinton Administration could sometimes do it in a fraction of that time with better, or at least no worse, results);
- Eschewing progressive judicial candidates, including well-qualified underrepresented groups, with scholarly credentials and practical expertise in immigration, asylum, human rights, and due process in favor of an endless stream of largely “insider only, don’t rock the boat” picks;
- Leaving numerous positions unfilled at the end of the Administration for White Nationalist xenophobe Jeff Sessions to fill;
- Ignoring obvious, achievable management reforms like e-filing!

The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history!

In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!

Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!

It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!

It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!

Due Process Forever! Repeating past mistakes, never!

PWS

08-30-20

🇺🇸⚖️🗽👍🏼🏆👏🏽GOOD GOVERNMENT: BELEAGUERED FEDS WOULD FIND WELCOME RESPITE IN BIDEN ADMINISTRATION! — This Election Could Be “Last Call” For One Of The Cornerstones Of Our Democracy — A Competent, Honest, Career Civil Service!

https://www.washingtonpost.com/politics/biden-federal-workers-unions/2020/08/26/62595932-e71c-11ea-a414-8422fa3e4116_story.html

Joe Davidson reports for WashPost:

If Joe Biden is elected president, he promises to overturn President Trump’s aggression against federal employee unions, support regular pay raises for federal employees and protect their workplace rights.

Biden, the Democratic nominee, has pledged to upend Trump’s actions concerning federal labor organizations on Inauguration Day in January. Trump’s assaults were codified in three executive orders he issued in 2018. They systematically undermined the ability of unions to represent not only their members, but all employees in agency collective-bargaining units.

Saying Trump “has loosed a direct attack on our members’ union rights and dignity on the job,” the American Federation of Government Employees (AFGE) questionnaire to Biden outlines policies the largest federal union wants reversed.

“This includes purging lawful representational activity from government worksites and equipment, weaponizing the bargaining process to propose, and in some cases impose, one-sided contracts, attacking our statutory right to collect voluntary dues, crippling our ability to mediate disputes on duty time, and more,” says the questionnaire’s introduction. “Taken together, these attacks constitute more than just a threat to our members’ livelihoods, they threaten the survival of the merit-based civil service system on which our government is built.”

AFGE endorsed Biden last month. In two internal polls, AFGE said its members supported Biden over Trump by more than 30 points.

The first question asked Biden to commit to overturning the executive orders and other directives that weaken employee due process and collective bargaining rights “on your first day in office.” Biden agreed and said “the federal government should serve as a role model for employers to treat their workers fairly.”

“On my first day in office,” he added, “I will restore federal employees’ rights to organize and bargain collectively, restore their right to official time, and direct agencies to bargain with federal employee unions.” Official time allows union leaders to represent employees, including those who are not union members, in grievance procedures and matters involving issues such as workplace safety and productivity, while being paid by the government.

[If he gets a presidential Day 1, Biden has a nearly endless list of ways to spend it]

In addition to Biden’s answers, the Democratic Party Platform promises to “strengthen labor rights for the more than 20 million public-sector employees” at all levels by supporting legislation that would “provide a federal guarantee for public-sector employees to bargain for better pay and benefits and the working conditions they deserve.”

While Trump has been relentless in his federal union offensive, all was not copacetic when Biden served as Barack Obama’s vice president. Government workers vehemently opposed three federal pay freezes imposed under Obama, with congressional approval, during an era of budget tightening.

But the Obama-Biden administration did not seek to fundamentally undermine unions as Trump has done or diminish federal workers. Obama’s stated effort to “make government cool again” contrasts sharply with Trump’s “drain the swamp” attitude toward government. Trump did not respond to AFGE’s questionnaire.

. . . .

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

Read the complete article at the link.

Just another instance where Biden is going to have to separate himself from some misguided, occasionally weak-kneed and shortsighted, Obama-era policies and establish himself as his own man, with a decidedly more practical, aware, and progressive approach. And, as a long-time public servant himself (albeit an elected one) — whose career has in many ways been built and furthered by the skills, expertise, and contributions of civil servants in all branches of Government — I believe he is up to the task. Indeed, he might well be the best-qualified candidate in my lifetime to save and enhance our now reeling and crumbling civil service — one of the “crown jewels” of American democracy now under unrelenting assault from a thoroughly corrupt Trump and his GOP nihilist “wrecking crew.”

For example, look at how the cowardly and totally unethical “Billy the Bigot” Barr tried to “punish” Judge Ashley Tabaddor and the National Association of Immigration Judges (“NAIJ”) (disclosure: I am a proud retired member) for speaking “truth to power.” As the only ones authorized to speak out on behalf of Immigration Judges (regardless of membership in the NAIJ), Judge Tabaddor and other NAIJ officials exposed the massive corruption, gross mismanagement, improper politicization, and medically dangerous working conditions at EOIR! As a result, Billy tried to silence her and the NAIJ by filing a frivolous action to “decertify” the NAIJ based on bogus reasons, many rejected by the FLRA in the past. This abuse of Government resources and process by Billy has since been dismissed after hearing by a FLRA official, as previously reported in “Courtside.”

As a civil servant for more than 35 years, serving in Administrations of both parties, at levels from “worker bee” to “Senior Exec,” and a veteran of 21 years on both levels of the Immigration Bench (when it actually more resembled a “real court” than the ridiculous parody engineered by Gonzo Apocalypto and Billy the Bigot), I know what I’m speaking about.

Incidentally, I was one of the “founding brothers and sisters” of the BIA employees’ union in the 1970s, and then went on to battle that same union before the FLRA during my tenure as BIA Chair in the late 1990s. So, like many issues in immigration during my career, I understand both sides.

But, I never questioned the BIA union’s authority to speak for the staff. In most ways, it was a good “focal point” for getting important issues out in the open and resolving them, even if the process was occasionally contentious and frustrating. And, I’d have to admit to getting some good ideas on management improvements from union officials. So good, in fact, that I actually hired some of them to become staff managers at the BIA.

Over my career, I was involved in thousands of asylum and refugee cases, many of them successful. Many were fleeing countries with great progressive “paper constitutions” and sometimes even very “facially reasonable” statutory law. A number of these countries had even signed the U.N. Refugee Convention. What often made these countries “persecutors” as opposed to “protectors” was in the “execution” rather than the “black letter law.”

Two characteristics that many of these persecutors had in common were: 1) an authoritarian executive who controlled a corrupt civil service usually “on the take,” staffed with family members, tribe members, or “party regulars,” and personally loyal to the leader rather than the constitution and statutes; and 2) “courts” that were either instruments of the leader and his tribe or party or too feckless to stand up against executive tyranny.

Under Trump and his corrupt GOP cronies, the US is well on its way to this type of “banana republic” public service in all three branches. And, don’t thank that a healthy economy or a robust stock market are “proof” against tyranny. Today’s China, as well as Nazi Germany and Imperial Japan, are prime examples of how “economic success and power” do not necessarily equate with good government, equality, or lack of repression.

This November, vote like your life and the future of our democracy depend on it! Because they do!

PWS

08-26|-20

SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!

Laura Lynch @ AILA reports:

FYI – On Friday, August 21st, Democratic members of the Senate Judiciary Committee sent a letter to the GAO requesting an investigation into the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

From: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Sent: Friday, August 21, 2020 3:24 PM
To: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Subject: Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

FOR IMMEDIATE RELEASE

August 21, 2020
Contact: Rich Davidson

(202) 228-6291 (press office)

Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

Trump attacks on immigration system raise serious concerns about safety during pandemic

More than 1,000 people in immigration detention have tested positive for COVID-19, and five have died

Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), and Mazie Hirono (D-HI) led a Senate request to the top congressional watchdog to investigate the practices of the Executive Office of Immigration Review (EOIR) under President Trump, including its management of immigration courts during the current COVID-19 pandemic. In a letter to the Government Accountability Office (GAO), the senators raise concerns first voiced to the Justice Department in February about mismanagement of the EOIR under Attorney General William Barr, as well as the Trump administration’s regulatory and procedural changes at the Justice Department that have curtailed the independence of immigration courts. The administration’s mismanagement of and meddling with the immigration courts – done in the name of “efficiency” – are particularly troubling during the COVID-19 pandemic, when an overburdened system can lead to unsafe practices that place individuals at grave risk and jeopardize due process, the senators write to the GAO.

“While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures, legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens,” the senators write. “In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous.”

Joining Whitehouse, Durbin, and Hirono in the request to the GAO are Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Kamala Harris (D-CA).

The senators continue in their letter to GAO, “Immigration courts are now reopening around the country, including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video, participants often must appear in person or not at all. Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19. Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits. As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.”

The Trump administration’s management of the immigration system has come under close scrutiny during the COVID-19 crisis. Reports suggest immigrants face a range of unsafe conditions and practices as a result of Trump administration management decisions, including the detention of children using unaccountable private contractors. More than 1,000 people in immigration detention have tested positive for COVID-19, and five people have died.

Full text of the senators’ request is below. A PDF copy is available here.

August 21, 2020

The Honorable Gene Dodaro

Comptroller General of the United States

United States Government Accountability Office

441 G Street, NW

Washington, DC 20548

Dear Mr. Dodaro:

We are writing to request that the Government Accountability Office (GAO) analyze and audit the Executive Office of Immigration Review’s (EOIR) practices with respect to the hiring, training, and evaluation of immigration judges and staffing of immigration courts, as well as their management of these courts during the current COVID-19 pandemic. GAO’s insight will help Congress determine if additional legislation is necessary to address these issues, as well as inform appropriations decisions.

In February, we wrote to Attorney General William Barr to express our concern that the Trump administration is undermining the independence of immigration courts. As outlined in that letter, attached, we are concerned about the mismanagement of EOIR and troubled by regulatory and procedural changes within the Department of Justice (DOJ) that have curtailed the independence of immigration courts. Although more than six months have passed, we have not received a response from DOJ or EOIR. Instead, in that time, EOIR has continued to use its administrative powers to put its thumb on the scale of justice. Most recently, EOIR attempted to buy out all nine career Board of Immigration Appeals judges who had been hired in prior administrations.[1] When the judges refused, they were reassigned to new roles.[2]

While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures,[3] legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens. In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous. While EOIR initially postponed all hearings for non-detained individuals, proceedings for detained noncitizens continued to move forward unabated.[4] Immigration courts are now reopening around the country,[5] including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video,[6] participants often must appear in person or not at all.[7] Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19.[8] Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits.[9] As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.[10]

EOIR’s facially-neutral policies during the COVID-19 pandemic have raised systemic due process concerns.[11] Immigration judges, staff, and litigators have also expressed concerns about the health risks to them and the litigants who appear in immigration courts.[12] Given GAO’s prior work on immigration courts,[13] it is uniquely suited to conduct an audit and analysis of EOIR. We ask GAO to look into the following questions:

What criteria does EOIR use to hire immigration judges and Board of Immigration Appeals judges? What criteria does EOIR use to determine the number of deputy chief and other management positions for judges, and what criteria does EOIR use to hire for these positions? To what extent does EOIR assess its immigration judge and Board of Immigration Appeals judge hiring efforts? What, if any, challenges has EOIR encountered in recruiting and retaining immigration judges and Board of Immigration Appeals judges? How, if at all, has it addressed them?

How does EOIR determine targets for immigration court and Board of Immigration Appeals case completion time frames and caseloads?

To what extent has EOIR assessed its immigration court and Board of Immigration Appeals staffing needs? What have any such assessments shown? How do current immigration court staffing levels compare to staffing needs EOIR has identified?

How does EOIR assess immigration and Board of Immigration Appeals judge performance?

To what extent has EOIR assessed immigration judge and Board of Immigration Appeals judge training needs? What have any such assessments shown?

How has EOIR’s use of video teleconferencing changed since GAO last reported on it in 2017? What, if any, data is EOIR collecting on hearings using video teleconferencing and the effects of that technology on hearing outcomes?

How do EOIR’s practices compare to other administrative courts?

How, if at all, is EOIR addressing the backlog of cases that were postponed in response to the COVID-19 pandemic?

How, if at all, has EOIR’s response to COVID-19 affected noncitizens’ ability to locate and meet with counsel, obtain and present evidence in their cases, and appear in court? To what extent have the challenges of COVID-19 impacted the number of in absentia orders issued by immigration courts?

Please keep our offices apprised of your review. Thank you for your attention to this matter.

###

[1] Tanvi Misra, DOJ ‘reassigned’ career members of Board of Immigration Appeals, CQ Roll Call, June 9, 2020, available at https://www.rollcall.com/2020/06/09/doj-reassigned-career-members-of-board-of-immigration-appeals/.

[2] Id.

[3] Jeff Sessions, Attorney General, U.S. Dep’t of Justice, Remarks to the Executive Office for Immigration Review Legal Training Program (Jun. 11, 2018), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-executive-office-immigration-review-legal.

[4] Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic (last updated Aug. 19, 2020); American Immigration Lawyers Association, “AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic,” https://www.aila.org/eoir-operational-status (last visited Aug. 19, 2020).

[5] American Immigration Lawyers Association, supra note 4.

[6] Id.

[7] Emergency Mot. for a Temporary Restraining Order, Nat’l Imm. Project of the Nat’l Lawyers Guild v. Exec. Office of Imm. Review, No. 1:20-cv-00852-CJN, at 12-18 (D.D.C. Apr. 8, 2020), available at https://www.aila.org/advo-media/press-releases/2020/temporary-restraining-order-requested-to-stop.

[8] Id. at 15-16.

[9] Monique O. Madan, Despite national shortage, immigration lawyers required to bring their own medical gear, Miami Herald, Mar. 22, 2020, https://miamiherald.com/news/local/immigration/artcile241414486.html.

[10] Id. 12-15, 25-26.

[11] Betsy Woodruff Swan, Union: DOJ deportation appeals workers fear overcrowding, Politico, Apr. 23, 2020, https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075 (“That is the feeling the [EOIR] employees have, that [EOIR’s COVID response is] definitely connected to this administration and their desperation to be able to boast about how great they’re doing on their deportation numbers.”).

[12] Nat’l Assoc. of Immigration Judges, Am. Assoc. of Immigration Lawyers, & Am. Fed. Of Gov’t Employees Local 511, Position on the Health and Safety of Immigration Courts During the COVID-19 Pandemic, Mar. 15, 2020, available at https://naij-usa.org/images/uploads/newsroom/2020.03.15.00.pdf.

[13] See, e.g., Gov’t Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (June 2017).

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

Basically, confirms what AILA, NAIJ, our Round Table, NGOs, and much of the media have been saying for a long time now! Obviously, the Dems lack the power in the Senate to take effective action to eliminate EOIR and replace it with an independent Article I Court, at present. Hopefully, that will be remedied in November.

In the meantime, what’s the excuse of the Article IIIs for continuing to allow this mockery of our Constitution and parody of justice to continue to daily inflict abuse on their fellow humans?

Due Process Forever!

PWS

08-25-20

😇🌞🗽⚖️👍🏼“A LIGHT IN THE FOREST” — Michelle Mendez @ CLINIC Shows How Good Pro Bono Lawyering Saves Lives Even When The System Is Rigged Against Justice For Immigrants!

Subject: CLINIC BIA Pro Bono Project Recent Victories

Friends,

BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly with the purpose of making it more difficult for noncitizens to win their cases. However, CLINIC’s BIA Pro Bono Project continues to fight back and perform miracles—defeating Goliath—thanks to BIA Pro Bono Project Manager Rachel Naggar, BIA Pro Bono Project Legal Specialist Brenda Hernandez, and our many dedicated attorney volunteers. Rachel and Brenda shared with me the project’s awe-inspiring stories of success from this summer and the volunteers who made these victories possible. In turn, I share these success stories with you to offer inspiration to keep fighting for your clients while the Trump administration escalates its attacks on immigrant communities.

The BIA remanded the case of a Haitian asylum seeker on numerous grounds, including that the IJ did not apply the proper framework for assessing firm resettlement, the IJ mixed up the respondent’s political party when assessing his claim for withholding of removal, and the IJ did not meaningfully consider the respondent’s risk of future persecution. Thank you to Michael Ward of Alston&Bird!

The BIA overturned the IJ’s adverse credibility finding against an asylum seeker from Burkina Faso. The BIA also found that the IJ erred in concluding there was no nexus between the harm the respondent suffered and his political opinion, including that the prosecution he endured was actually pretext for persecution. Thank you to Gregory Proctor, Marjorie Sheldon, and Christian Roccotagliata of Kramer, Levin, Naftalis & Frankel!

The BIA granted asylum to a Cuban refugee. Contrary to the IJ, the BIA found that the harm suffered by the respondent did cumulatively rise to the level of past persecution and he did have a well-founded fear of persecution. Thank you to Austin Manes and Aaron Frankel of Kramer, Levin, Naftalis & Frankel!

The BIA remanded the case of a Cuban asylum seeker because the IJ failed to consider the evidence of past economic persecution along with the physical harm suffered. The BIA also reminded the IJ that where the persecution is committed by the government, it is presumed that internal relocation is not reasonable, and the burden shifts to DHS to demonstrate that it would be reasonable in this case. Thank you to Dean Galaro of Perkins Coie!

The BIA reopened the case of a Cuban asylum seeker because he had new evidence of harm and threats against his family that occurred after his final hearing with the immigration judge. Thank you to Astrid Ackerman and Aaron Webman of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit granted the petition for review of a Ghanaian asylum seeker, overturning the IJ’s negative credibility finding and concluding that the Board had failed to adequately consider the country conditions evidence when it denied CAT relief. You can read the full decision here. Thank you to Kari Hong of Boston College Law School!

The Third Circuit, in a published decision, granted a Honduran asylum seeker’s petition for review, finding that the IJ and BIA erred in analyzing whether the respondent had suffered past persecution. The Court also found that the IJ failed to conduct the proper analysis regarding the need for evidence in an application for CAT protection. You can read the full decision here. Thank you to Aaron Rabinowitz and Gary Levin of Baker & Hostetler!

The Sixth Circuit, in a published decision, granted a Russian asylum seeker’s petition for review, finding that the IJ and BIA erred in concluding that the respondent was not persecuted on account of his political opinions and that his indictment for peacefully protesting under Russian law was a pretext for persecution. You can read the full decision here. Thank you to Brenna Duncan and Andrew Caridas of Perkins Coie!

DHS withdrew its appeal of a grant of asylum from Mexico to a Cuban national. DHS conceded to the IJ that the respondent was eligible for asylum from Mexico, but not Cuba because of the Third Country Transit Bar. DHS changed its mind and filed an appeal, which was withdrawn after pro bono counsel filed his brief. Thank you to James Montana of The Law Office of James Montana!

The BIA dismissed an appeal by the Department of Homeland Security and upheld a Cuban woman’s grant of asylum. The Board found that the IJ was correct in deeming the respondent eligible for asylum and not subject to the Third Country Transit Bar. Thank you to Aaron Rabinowitz and Jeffrey Lyons of Baker & Hostetler!

ICE released a Venezuelan asylum seeker from detention to reunite with her spouse, after tremendous advocacy efforts by her pro bono attorney. Thank you to David Gottlieb!

The Ninth Circuit remanded the case of a Honduran victim of domestic violence, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had demonstrated that the Honduran government acquiesced in her persecution, whether the respondent is part of a viable particular social group, whether it would have been futile for her to report the harm to local authorities, and whether internal relocation would be reasonable. Thank you to Alicia Chen!

A victim of human rights violations by the notorious Eritrean military was granted withholding of removal, after the BIA overturned the IJ’s adverse credibility finding and found that the IJ failed to consider that the country conditions evidence corroborated the respondent’s claim. Thank you to Jonaki Singh and Susan Jacquemot of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit remanded the case of an asylum seeker from Mexico, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had been persecuted and sexually assaulted on account of her sexual orientation, and whether the government of Mexico could adequately protect her from future harm. Thank you to Tim Patton of the Appellate Immigration Project!

The Fourth Circuit granted the petition for review holding that a conviction under VA 18.2-280(A) is not a removable firearms offense, a result that would not have been possible had Mr. Gordon not continued to fight his case for so many years even despite being deported. You can read the decision here. Thank you to the CAIR Coalition and Ted Howard at Wiley Rein! Thank you also to the National Immigration Project of the National Lawyers Guild for the amicus support!

Jose came to the United States in 1985 to live with his father as a permanent resident. He built a life in the United States, becoming a father himself. After a run in with the law, he was placed in removal proceedings and was detained for 19 months. In a 2-1 decision, the Third Circuit found that under the unique circumstances of this case, Jose’s father was deprived of the equal protection of the laws. Jose is a United States citizen, the court declared, and has been since 1985. In the wake of the Supreme Court’s 2016 decision in Sessions v. Morales-Santana, Jose’s case was the first to benefit from this Supreme Court decision. You can read the full decision here. The government petitioned for rehearing, but the full Third Circuit declined to intervene. Ultimately, the government declined to ask the Supreme Court to review the case. For the better part of the last decade, Jose’s life has been filled with uncertainty and stress, but not anymore, which is very important as Jose is expecting his first grandchild. A huge thank you to Nick Curcio who has represented Jose for 7 years!

In its 19+ years of operation, the Project has reviewed more than 7,200 cases, pairing attorneys and law school clinics with vulnerable asylum seekers and long-time lawful permanent residents. If you are interested in representing a case through CLINIC’s BIA Pro Bono Project, please complete our volunteer form. If you prefer to show your support for the BIA Pro Bono Project via a monetary donation, please designate “BIA Pro Bono Project” in the “In honor of” field of our donations page.

Gratefully and in solidarity,

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

Thanks Michelle, my friend, colleague, and courageous leader of the NDPA. What a timely, wonderful, practical, “real life” illustration of Jason “The Asylumist” Dzubow’s “praise and call to action for pro bono” that I republished earlier this week! https://immigrationcourtside.com/2020/08/11/lifesaving-101-for-the-ndpa-begins-with-pro-bono-never-has-the-need-been-greater-pro-bonos-finest-hour-in-americas-time-of-darkness-cruelty-inhumanity/

Here’s what our colleague Judge Jeffrey Chase has to say about Michelle and CLINIC:

No surprise, Michelle. CLINIC is responsible for so much good case law. And the non-CLINIC successful attorneys probably used CLINIC training or practice advisories. Congrats to you and all of your outstanding attorneys and support staff, and thanks for all you do!

Even in times of our greatest national darkness and misery, there are plenty of lives that can be saved! Contrary to the “Dred Scottification” — dehumanization of persons in our country — unconscionably pushed by the regime and enabled by many public officials and courts that “should know better,” every person’s life is important!

And, despite the conscious misinterpretation and misapplication of the Fifth Amendment by far too many of those charged with upholding it, every person in the U.S., regardless of race or status, is entitled to due process, fundamental fairness, and to be treated with human dignity.

Think of how much progress we could make if we didn’t have to keep re-litigating all the same issues over and over again, often with differing results!

What if the “precedents” concentrated on those cases that could be granted, rather than almost exclusively focusing on “roadmaps to denial?”

What if we promoted and supported great pro bono representation, rather than inhibiting and discouraging it?

What if meritorious cases were moved to the “head of the line” instead of continuously being “shuffled off to Buffalo” by “Aimless Docket Reshuffling” (“ADR”) thereby languishing in the mindlessly expanding backlog?

What if Federal Judges at all levels were the “best and the brightest” — selected from among those with demonstrated expertise in immigration, asylum and human rights and impeccable reputations for due process, fundamental fairness, and humanity, rather than being selected for “go along to get along” reputations or allegiance to perverse political ideologies that undermine equal justice for all?

What if our Immigration Court system were administered independently and professionally, rather than as a biased and weaponized tool of DHS enforcement and White Nationalist politicos?

What if our Justice System worked cooperatively with folks like Michelle, Jason, Judge Ashley Tabaddor, and many others with good, creative, practical ideas for institutionalizing “best practices” leading to to “due process with efficiency?”

What if we fairly implemented our refugee, asylum, and protection legal framework to “protect rather than reject?”

What if we consistently treated our fellow beings as humans, rather than as “less than human?”

What if we viewed immigration for what it really is: the foundation of our nation and a continuing source of great strength, pride, and optimism for our country of immigrants, rather than pretending that we live on an island and must “wall off” the rest of the world?

This November, vote like your life and the future of our nation depend on it! Because they do!

PWS

08-14-20

🏴‍☠️☠️🤡🤮ANOTHER EOIR SCAM: MORE LAYERS OF MISMANAGEMENT FOR FAILED SYSTEM — More Managers Are No Substitute For Competent Court Management!

Regional Deputy Chief Immigration Judge

08/10/2020 10:00 AM EDT

Executive Office for Immigration Review (EOIR)
Office of the Chief Immigration Judge
Falls Church, Virginia
Announcement #: SES-10606886-20-AS
Application Deadline: September 8, 2020

Typical work assignments will include:

·         Directing oversight of activities of formal, quasi-judicial hearings and proceedings conducted by Immigration Judges within a designated region.

·         Providing executive leadership for court matters involving deportation, exclusion, removal, rescission, bond and related decisions and actions of Immigration Judges and Court personnel.

·         Managing the analysis and evaluation of judicial decisions to determine impact on immigration judges, court policies and procedures and/or the immigration judge program.

·         Providing technical direction of court staff through Assistant Chief Immigration Judges, Immigration Judges and Court administrators through the region.

Number of Positions:
6 vacancies in multiple locations: San Francisco, CA, Chicago, IL, New York, NY, Miami, FL, Las Vegas, NV, Houston, TX

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

It never hurts to restate the obvious when dealing with the never-ending, always worsening mess at EOIR.

A system that competently selects well-qualified professional judges needs very little “management” at all, since judges are independent decision makers. Qualified judges basically are “self-managing.”

What they do need is competent professional administrators who secure the necessary resources, technology, equipment, and training for those judges to function efficiently and professionally while steering clear of any interference in substantive judicial decision making. Administrators responsible to the judges and public they serve, rather than vice versa as EOIR is now constructed. Indeed, “customer service” at today’s EOIR isn’t just “off the charts” — it never was on the regime’s chart to begin with!

A trial court also needs a competent, functional appellate division that shows leadership in promoting due process, fundamental fairness, and best practices throughout the system through clear, cogent, and intellectually honest precedents.

Right now EOIR has almost nothing it needs and everything it doesn’t. Not surprisingly, this incredibly FUBAR system is a total dysfunctional mess where injustice reigns supreme and “management” squanders taxpayer funds while constantly turning complete disorder into mind-boggling morale killing unrelenting disasters.

Due Process Forever! Today’s FUBAR EOIR, Never!🤮

PWS

08-10-20

🛡⚔️⚖️🗽 ROUND TABLE ASSISTS FIGHT AGAINST “AMERICA’S STAR CHAMBERS” — Here’s Our Amicus Brief In Las Americas v. Trump! — With Thanks To Our Pro Bono Friends STOLL STOLL BERNE LOKTING & SHLACHTER P.C. in Portland, OR!

Excerpt:

The immigration court system lacks independence. An agency within the Department of Justice, the Executive Office for Immigration Review (EOIR) houses the immigration court system, which consists of trial-level immigration courts and a single appellate tribunal known as the Board of Immigration Appeals (BIA). Immigration judges, including appellate immigration judges, are viewed by EOIR “management” not as judges, but as Department of Justice attorneys who serve at the pleasure and direction of the Nation’s prosecutor-in-chief, the Attorney General.

As former immigration judges, we offer the Court our experience and urge that corrective action is necessary to ensure that immigration judges are permitted to function as impartial adjudicators, as required under the Immigration and Nationality Act. The INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”) (emphasis added); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”) (emphasis added).

Although housed inside an enforcement agency and led by the Nation’s chief prosecutor, immigration judges must act neutrally to protect and adjudicate the important rights at stake in immigration cases and check executive overreach in the enforcement of federal immigration law. Applying a detached and learned interpretation of those laws, judges must correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.

Here’s the full brief:

Las Americas Amicus (full case)

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

As I often say, it’s an honor to be a part of this group with so many of my wonderful colleagues. It’s also an honor to be able to assist so many wonderful “divisions and brigades” of the New Due Process Army, like the SPLC and Immigration Law Lab.

Here’s another thought I often express: What if all of this talent, creativity, teamwork, expertise, and energy were devoted to fixing our broken Immigration Court System rather than constantly fighting to end gross abuses that should not be happening? There is a “systemic cost” to “maliciously incompetent” administration and the White Nationalist agenda promoted by the Trump kakistocracy!

Due Process Forever!

PWS

08-04-20

🛡⚔️👍🗽⚖️👩🏻‍⚖️FIGHTING THE STAR CHAMBER! — US District Judge Holds That Constitutional Challenge To Weaponized Immigration “Courts” Can Proceed! — “Both policies change the way immigration judges run their dockets and their courtrooms. Accordingly, Plaintiffs have at least sufficiently alleged that such docket management has practical consequence for parties or their attorneys.”

Melissa Crow
Senior Supervising Attorney
Southern Poverty Law Center

Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

FOR IMMEDIATE RELEASE

August 3, 2020

Contact:

Marion Steinfels, marionsteinfels@gmail.com / 202-557-0430
Ramon Valdez, ramon@innovationlawlab.org / 971-238-1804

Federal Court Denies Government’s Motion to Dismiss in Immigration Court Case
Advocates’ challenge to immigration courts as “deportation machines”
moves forward; constitutionality of immigration court system at issue

PORTLAND, OR – Immigrant rights advocates challenging the weaponization of the U.S. immigration courts applaud Friday’s late-afternoon ruling by the U.S. District Court of Oregon that their lawsuit, Las Americas v Trump, will move forward. The legal services providers, Las Americas Immigrant Advocacy Center, Asylum Seeker Advocacy Project (ASAP), Catholic Legal Immigration Network, Inc. (CLINIC), the Southern Poverty Law Center (SPLC), Innovation Law Lab, and Santa Fe Dreamers Project (SFDP), working with Perkins Coie LLP for pro bono support, allege that the Administration has failed to establish an impartial immigration court as required under the Immigration and Nationality Act (INA) and the Take Care Clause of the U.S. Constitution – weaponizing them into deportation machines against asylum seekers and other noncitizens – and asks the court to end the unlawful use of the courts to effectuate mass deportations instead of fair decisions.

In Friday’s order, the Honorable Karin Immergut denied the government’s motion to dismiss the case. The district court rejected the government’s arguments, holding that all of the organizations’ claims could proceed, including their claim that the Attorney General has grossly mismanaged the immigration court system and weaponized the system against asylum seekers.

“This is a clear victory for everyone who has sought a fair hearing in immigration court, only to face a system plagued by rampant dysfunction and policies designed to subvert justice,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “For asylum seekers and those who represent them, the current process is like playing Russian roulette. Despite the life-or-death stakes in these cases, there is little rhyme or reason to the court’s workings apart from prioritizing deportation at all costs.”

“Friday’s decision is an important milestone in our fight for a truly fair, transparent, and independent immigration court,” said Tess Hellgren, staff attorney with Innovation Law Lab. “Whether an asylum seeker wins or loses should not depend on the political whims of the President or Attorney General. ”

Not only does the Court’s decision confirm that the gross mismanagement of the immigration court system is subject to judicial review, it also recognizes that there may be important constitutional checks and balances on the power of presidential administrations to manipulate the immigration courts to achieve mass deportation.

“This win is incredibly validating. We often operate under the guise that the work we are doing is impossible,” said Linda Corchado, Managing Attorney of the Las Americas Immigrant Advocacy Center. “We feel uplifted as we can take the giant step forward to tackle the system now, with everything we’ve got.”

“ASAP works with families across the United States and at the border who fled persecution and now face countless obstacles to seeking asylum in the U.S. immigration court system,” said Conchita Cruz, Co-Executive Director of ASAP. “This decision gets us one step closer to showing that the injustices of the U.S. immigration court system are not only wrong, but illegal. We stand with asylum seekers and immigrants’ rights advocates in bringing these abuses to light and demanding better from our government.”

The lawsuit, which was filed in December 2019, alleges President Trump, Attorney General Barr, and other members of the executive branch have failed to establish a fair immigration court system in which the plaintiff organizations can provide meaningful legal assistance to their asylum-seeking clients. The complaint outlines pervasive dysfunction and bias within the immigration court system, including:

The Enforcement Metrics Policy, , which requires immigration judges to decide cases quickly, at the expense of a fair process, in exchange for favorable performance reviews.

The “family unit” court docket, which stigmatizes the cases of recently arrived families and rushes their court dates, often giving families inadequate time to find an attorney and prepare for their hearings.

Areas that have become known as “asylum-free zones,” where virtually no asylum claims have been granted for the past several years.

The nationwide backlog of pending immigration cases, which has now surpassed 1 million — meaning that thousands of asylum seekers must wait three or four years for a court date.

In June 2019, Innovation Law Lab and SPLC also released a report, based on over two years of research and focus group interviews with attorneys and former immigration judges from around the country, documenting the failure of the immigration court system to fulfill the constitutional and statutory promise of fair and impartial case-by-case adjudication. The report can be accessed here: The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool.

The court’s opinion is HERE.

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The Southern Poverty Law Center, based in Alabama with offices in Florida, Georgia, Louisiana, Mississippi and Washington, D.C., is a nonprofit civil rights organization dedicated to fighting hate and bigotry, and to seeking justice for the most vulnerable members of society. For more information, see www.splcenter.org and follow us on social media: Southern Poverty Law Center on Facebook and @splcenter on Twitter.

Innovation Law Lab, based in Portland, Oregon with projects around the country and in Mexico, is a nonprofit organization that harnesses technology, lawyers, and activists to advance immigrant justice. For more information, visit www.innovationlawlab.org.

The Asylum Seeker Advocacy Project (ASAP) provides community support and emergency legal aid to asylum seekers, regardless of where they are located. ASAP’s model has three components: online community support, emergency legal aid, and nationwide systemic reform. For more information, see www.asylumadvocacy.org and follow us on social media at @asylumadvocacy on Facebook, Twitter and Instagram.

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So, finally, the clear unconstitutionality of “Star Chambers” run by a biased prosecutor who basically views himself as the personal lawyer for a racist xenophobic President is going to get some scrutiny, along with the beyond grotesque mismanagement of EOIR that has created a “backlog” that in all likelihood now exceeds 2 million cases. But, of course we don’t know, and may never know, the exact extent of the backlog because of 1) the notoriously defective record keeping at EOIR; and 2) the manipulation of and sometimes outright misrepresentation of data by the Trump Administration.

Thanks to SPLC and Innovation Law Lab for undertaking this long-overdue effort. And, special appreciation to my friends and New Due Process Army superstars Melissa and Tess.

Due Process Forever!🗽⚖️👩🏻‍⚖️

PWS

08-03-20

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