"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Gagged” Garland’s DOJ has taken extreme steps to stop Immigration Judges from publicly criticizing his dysfunctional Immigration Courts! PHOTO: Public Domain via Creative Commons
Joe Davidson, “Federal Insider,” from p. 2 of today’s WashPost (print edition):
. . . .
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union’s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department’s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements “without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.”
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that “Democrat and Republican administrations share the failure of the DOJ’s immigration court management,” saying “immigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.” Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of giving “judges a voice” that’s now silenced.
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges’ union, when she wrote “any bargaining agreement … that may have existed previously is not valid at present.”
On Nov. 2, 2020, the day before Trump, who waged war on federal unions, lost his reelection bid, the Federal Labor Relations Authority ruled that immigration judges are management employees precluded from union representation. That means, according to McNulty, they cannot speak out as union leaders because she considers their association to be a “group” and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office’s “inappropriate and misguided application of the agency speaking engagement policy.”
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.
McNulty’s action drew heated reaction from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s effort to silence immigration judges,” wrote Reps. Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), chairmen of the House Judiciary Committee and its immigration subcommittee, respectively. In a letter to the attorney general, Sen. Chuck Grassley (R-Iowa) said any effort “to silence immigration judges … is absolutely unacceptable.”
Grassley also noted that McNulty’s order “failed to include the anti-gag provision as required by law.”
That’s a key point in the Office of Special Counsel’s notice.
. . . .
[IFPTE President Matt] Biggs called the Justice Department office’s policy “an outrageous act of censure and an attack on freedom of the press and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.”
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Hon. Mimi Tsankov President, NAIJ — She “blew the whistle” on the continuing “bipartisan due process mess at EOIR” during recent Congressional testimony. Her “DOJ handlers” were not amused!
Read Joe’s complete column at the above link.
Both Parties, Congress, the Executive, and the Article III Courts share blame for the current untenable mess at EOIR, where Due Process, fundamental fairness, quality control, expertise, and practical efficiency are mere afterthoughts, at best! Although there is no sign that it will happen in the near future, the answer is clear and has been for decades: Congress must put aside partisan differences, stop “jockeying for advantage,” and create an independent Article I Immigration Court with a merit-based selection system for judges and professional court administration. Then, let the system work and the chips fall where they may!
You can’t “run” a court system like a “Vatican-style” bureaucratic agency! How many times does that have to be proved for Congress to finally act? Yes, it’s a “big deal!’ Probably the biggest, most widely ignored, most achievable, most important (millions of lives and futures are literally at stake here) piece of solving the “immigration puzzle!”
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
SAN DIEGO (AP) — A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.
The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about “the pressures of the migrant crisis on the federal immigration court system.”
The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”
The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges’ union. He said the order contradicted President Joe Biden’s “union-friendly” position and vowed to fight it.
“It’s outrageous, it’s un-American,” said Biggs. “Why are they trying to silence these judges?”
. . . .
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Read the complete article at the above link.
Ukase Public Domain
Courtesy of my friend Dan Kowalski over at LexisNexis, here’s the text of what is being called the “McNulty Ukase:”
From: Chief Immigration Judge, OCIJ (EOIR) Sent: Thursday, February 15, 2024 11:53 AM To: Tsankov, Mimi (EOIR) ; Cole, Samuel B. (EOIR) Cc: Weiss, Daniel H (EOIR) ; Luis, Lisa (EOIR) ; Young, Elizabeth L. (EOIR) ; Anderson, Jill (EOIR) <
Subject: Public Engagements and Speaking Requests
Dear Judges Cole and Tsankov:
From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately.
Thank you,
Sheila McNulty
Chief Immigration Judge
Executive Office for Immigration Review • Department of Justice
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It’s perhaps no surprise. EOIR is a badly failing agency with an incredible ever-growing backlog of over 3 million cases, no plan for reducing it, antiquated procedures, a disturbing number of questionably-qualified judges (many holdovers from the Trump era), grotesque decisional inconsistencies, poor leadership, a tragic record of ignoring experts’ recommendations for improvements, and that produces a steady stream of sloppy, poorly-reasoned, or clearly erroneous decisions on the “nuts and bolts” of asylum and immigration law that are regularly “roasted” by Circuit Judges across the political spectrum.
In this context, their desire to strangle criticism from those actually trying to provide justice and due process, against the odds — the sitting Immigration Judges who see the management and systemic problems on a daily basis — is perhaps understandable, if not defensible.
At least where immigration is involved, the Biden Administration’s rhetoric and promises on being “labor friendly” and supportive of Federal workers is unfortunately reminiscent of its pledge to treat asylum seekers and immigrants fairly and humanely and to distance themselves from the racially-driven xenophobic policies of the Trump Administration.
While the NAIJ may be “gagged,” the fight about working conditions and the unrelenting dysfunction at EOIR is far from over!
Sources close to the NAIJ’s parent union, the IFPTE, tell me that the “campaign to call out this atrocity” is “just getting started.”
In statement issued yesterday, IFPTE President Matt Biggs expressed outrage and raised the possibility that the Administration could face tough Congressional questioning on the gag order, which also applies to communications with legislators and legislative staff:
“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress. This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”
NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”
“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”
As noted by Biggs, over the years, NAIJ leadership has frequently been asked to testify before Congress and meet with staff as an independent counterpoint to the “party line, everything is under control” nonsense that has become a staple of DOJ politicos and EOIR bureaucrats in administrations of both parties in dealing with the Hill as the backlog continued to explode in plain view!
Although the Biden Administration has curiously shown little hesitation in throwing asylum seekers, human rights, and advocates who were a key support group in 2020 “under the bus” in an ill-advised attempt to “out-Trump-Trump” on stupidity and inhumanity at the border, the IFPTE could be a different animal. Representing more than 80,000 government professionals, the union endorsedBiden/Harris in 2020.
With a hotly-contested, close election underway, Biden can ill-afford to alienate more key support groups, particularly among organized labor. Why the “geniuses” in the White House and the Biden/HarrisCampaign think that going to war with your base is a great, “winning” strategy, is beyond me! Even Donald Trump recognizes the benefit of energizing behind him a loyal and committed (although horribly misguided) “base!”
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Tellingly, and illustrating this issue’s cosmic importance, the Ohio Immigrant Alliance just released its blockbuster report documenting systemic racism at EOIR entitled “The System Works As Designed: Immigration Law, Courts, & Consequences” —
This report is based on the experiences of immigrants, lawyers, and immigration court observers, as well as external research. “The System Works as Designed” reveals how U.S. immigration laws, and the courts themselves, were planted on a foundation of white supremacy, power imbalance, and coercive control. For those reasons, they fail to protect human dignity and lives on a daily basis.
While the operations of the immigration courts have frequently been ignored, their outcomes could not be more consequential to immigrants and their loved ones. This report lifts the curtain.
Racism in Immigration Law and Policies
It is clear from the congressional record, and laws themselves, that the Chinese Exclusion Act, Undesirable Aliens Act, Immigration and Nationality Acts of 1924 and 1952, and other laws played on racial and ethnic stereotypes to limit mobility and long-term settlement of non-white immigrants.
The Immigration and Nationality Act of 1965 attempted to address some imbalances, but the Illegal Immigration Reform and Immigrant Responsibility Act basically broke the already contradictory set of laws, making them a landmine for immigrants attempting to seek safety or build new lives here. The REAL ID Act and other post-9/11 laws and policies tightened the vise.
Policy choices made by presidents from every modern administration have attempted to coerce, repress, and reject migration, a basic human survival act, instead of building safe paths people can use.
Death Penalty Consequences, Traffic Court Rules
The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect. Dysfunctional elements include:
A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.
Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.
4
Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.
Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.
Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban.
Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual’s evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.
Consider the experience of M.D. a Black Mauritanian man seeking asylum in the U.S. after the late 1980s/early 1990s genocide. An immigration judge questioned his credibility because M.D. did not provide “evidence” that he is Black and Fulani, a persecuted group in Mauritania. M.D. addressed the court, speaking in Fulani, and said, “I am the evidence. I speak Fulani and I am Black.”
The English transcript of M.D.’s hearing is riddled with “(unintelligible)” in place of the names of relatives and locations where important events, such as the murder of his father, took place. There was an interpreter in the room who could have spelled the words out to make the record more accurate and credible. Instead, the record shows big holes in place of material facts, while M.D. was accused of not providing “proof” that he is Black, deemed not credible, denied asylum.
In another case, a Black man seeking asylum was found “not credible” because his interpreter first used the word “canoe” when describing his method of escape, and later said “little boat.” But in his language and, one can argue, in common English, they are the same thing.
Situations like these, memorialized in the case record, are carried into the appeals process where rehearings typically do not take place, compounding the injustices of these mistakes.
Many of the report’s observations echo some aspects my own writings and public speeches over the years since I retired from the bench in June 2016. For example, here’s my speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“ from from an FBA Conference in Austin, Texas in May 2019:
While I was speaking during the Trump Administration, sadly, many of my observations remain equally true today, as the Biden Administration and AG Garland have quite inexcusably failed to rise to the occasion by instituting long-overdue due process and quality control reforms at EOIR. Yet, I am struck by how even then, as today, I found reasons to continue to be proud of the accomplishments of the “New Due Process Army” (“NDPA”) and to urge others to continue tobelieve that the “light of due process will eventually be relit” at EOIR and that history will deal harshly with the xenophobic urges and anti-asylum attitudes that too often drive policy in administrations of both parties:
Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.
But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.
Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!
Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies. That’s what the “New Due Process Army” is all about.
That brings me back to two of my “key takeaways” from the Ohio Immigrant Alliance Report.
First: “Withholding is a true limbo status, though better than being sent back to certain death.” Skillfully and aggressively using the system to save lives, in any way possible, is job one. A life saved is always a victory!
Second, as the report concludes:
Solutions exist, but they require policymakers and legislators to listen to the people with direct, personal experience. Ramata, cited earlier in this report, suggests quicker approval of cases found credible at the outset. Aliou wants judges to put more stock in migrants’ testimony, understanding that persecuting governments are not credible sources about their own abuse. Jennifer, one of the immigration lawyers we interviewed, suggested that Black immigrant organizations and the American Immigration Lawyers Association be involved in crafting a new direction, citing their extensive expertise with how the system works—and fails people.
Bill, another immigration lawyer interviewed for this report, suggests taking a page from the refugee resettlement program when it comes to verifying facts about a case. “Social workers and private investigators [could] interview people and research documents and try to … verify whether [they’re] telling the truth or not,” he said. Bill suggests employment counselors, ESL teachers, and others with specialized expertise could also assist in the processing of cases.
Most importantly, the asylum and immigration system must be reoriented toward prioritizing safety and resettlement, rather than deportation as the default outcome. The forthcoming report, “Behind Closed Doors: Black Migrants and the Hidden Injustices of US Immigration Courts,” will explore these and other solutions.
As I have observed many times, despite the “national BS” on asylum and immigration being traded by Trump and Biden, and the legislative gridlock, there are still plenty of readily available, non-legislative solutions out there that would dramatically improve due process, justice, and the life-saving capacity of the EOIR system. While no single one of them is a “silver bullet” that would solve all problems overnight, each is an important step in the right direction. Taken together, they would substantially improve the quality and quality of justice overall in our U.S. legal system and, perhaps, in the process, save our republic from demise.
🇺🇸 Due Process Forever!
PWS
03-06-24
This article has been revised to include an excerpt from the IFPTE press release.
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
Inside Immigration Court: The Pros, Cons Of Remote Hearings
By Mimi Tsankov | June 2, 2023, 6:05 PM EDT ·
Listen to article
In this Expert Analysis series, immigration judges discuss best practices for attorneys who appear before them and important developments in immigration court practice for cases involving asylum, detention, deportation and adjustment to lawful permanent resident status.
Hon. Mimi Tsankov President,NAIJ
Mimi Tsankov
The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation’s immigration courts on a technological voyage into the 21st century.
Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]
Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]
During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.
These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]
This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]
. . . .
With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts “[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings.” This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.
Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]
With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.
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Thanks, Mimi, for all you do for due process and American justice! The above link will take you to the full article, complete with citations and disclaimer.
Sadly, my friend, waiting for “EOIR management to lead the way,” is likely to be “Waiting for Godot.”
Immigration practitioners waiting for EOIR “Management” to show. It could be a long wait. Very long! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.
Speakers include:
Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group
As well as additional members of the Expert Advisory Group:
Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
Michele Pistone, Professor of Law, Villanova University
Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.
The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.
To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!
They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!
Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
. . . .
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
. . . .
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law. Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.
Here is an ABA panel discussion led by Tsankov on judicial independence.
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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
Rep. Zoe Lofgren (D-CA) Chair of the House Subcommittee on Immigration and Citizenship PHOTO: US House
Here’s the scoop:
Lofgren Introduces Landmark Legislation to Reform the U.S. Immigration Court System
February 3, 2022 Press Release
The Real Courts, Rule of Law Act of 2022 creates an independent ‘Article I’ immigration court, free from the political influence of the Executive Branch
WASHINGTON, DC – Today, U.S. Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, The Real Courts, Rule of Law Act of 2022, a bill that transitions the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution. The bill will ensure that the immigration courts are administered by qualified, impartial judges; have adequate court resources and support services; are defined by transparency and integrity; and are financially independent. The Real Courts, Rule of Law Act of 2022 is co-sponsored by House Judiciary Committee Chair Jerrold Nadler (NY-10) and Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet, Hank Johnson (GA-04).
An office within the Department of Justice, our nation’s immigration court system – known as the Executive Office for Immigration Review – lacks procedural and structural safeguards to protect it against political influence. Immigration judges are not judicial officers – they are lawyers, appointed by the nation’s top prosecutor, the Attorney General. As employees of the Department of Justice, immigration judges are charged with adjudicating cases in accordance with the policies and priorities of the governing administration. Each Administration – Democratic and Republican – has used the immigration courts as a mechanism to shape immigration policy.
“A hallmark of our system of democracy and the rule of law is an independent judiciary. Our immigration court system will never be effective as long as it is housed under the Department of Justice. After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair,” said Chair Zoe Lofgren. “Congress must act by passing The Real Courts, Rule of Law Act to create an immigration court system independent of the Executive Branch. This structural overhaul will strengthen due process and restore faith in the system by taking politics out of the immigration courts for good.”
“Since its founding, our immigration court system has been mired by political interference from both Democratic and Republican administrations,” said Chair Jerrold Nadler. “Our country needs an immigration court system that can deliver just decisions in accordance with the law, not one that is subject to ever-changing political whims. I’m proud to join Subcommittee Chair Lofgren in introducing the Real Courts, Rule of Law Act, which would establish an independent Article I immigration court system consistent with other judicial institutions across our nation. By moving the court out from under the Department of Justice, this legislation will ensure that our immigration court system can effectively prioritize due process and the rule of law.”
“The creation of an independent immigration court would ensure that our immigration judges are no longer subject to the political whims of any particular administration,” said Chair Hank Johnson. “Our current immigration backlog is approaching 1.6 million cases and lacks procedural and structural safeguards to protect the human beings that make up these cases. By establishing an independent immigration court, this bill will ensure impartiality and transparency when it comes to these life and death decisions and allow these judges to administer justice efficiently and effectively. I’m proud to join Rep. Lofgren in introducing The Real Courts, Rule of Law Act of 2022.”
Establish an independent immigration court – similar to the U.S. Tax Court – consistent with Article I of the United States Constitution. The newly-formed United States Immigration Court will be comprised of a trial division, an appellate division, and an administrative division.
Ensure that qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.
Ensure that the United States Immigration Court has adequate resources and support to operate efficiently while giving the Court authority to appoint temporary immigration judges and establish temporary court facilities to ensure the expeditious administration of justice.
Improve transparency and accountability in Immigration Court proceedings by requiring publication of all court rules and procedures, as well as precedent decisions and pleadings while protecting confidential information.
Improve efficiencies by allowing the Immigration Court to establish its own budget without review by the Executive Branch and empowering immigration judges to control their own dockets and compel agency action that is unlawfully withheld or unreasonably delayed.
Strengthen the integrity of immigration court proceedings by giving immigration judges authority to impose civil money penalties for contempt of court.
Ensure due process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the Court.
Support
The Real Courts, Rule of Law Act of 2022 is supported by the American Bar Association, American Immigration Lawyers Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Council, Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense, National Immigrant Justice Center, National Immigration Law Center, Niskanen Center, and Women’s Refugee Commission.
“The American Bar Association has high regard for the mission and goals of the Justice Department, but we strongly support the creation of an independent Article I immigration court system. It is essential that every judge is free to decide cases based solely on the facts and the law, without external pressure or influence,” said Reginald Turner, President of the American Bar Association (ABA).
“This legislation and the effort to rebuild our immigration court system is welcome indeed. For decades, the deck has been stacked against immigrants. Getting a fair day in court is nearly impossible when the immigration courts are under the authority of the nation’s chief prosecutor: the Attorney General. Regardless of their administration or political party, Attorneys General can abuse the extraordinary power they have over the immigration courts and sacrifice due process for expediency. When that has happened in the past, the most vulnerable people – including asylum seekers, victims of violence, and people deprived of their liberty – have paid a high price. There remains vital work to be done by Congress to reform the immigration law itself—specifically, restoring discretion to immigration judges. But foundational to any fair system is a neutral judge. This bill provides that foundation,” said Jeremy McKinney, President-elect of the American Immigration Lawyers Association (AILA).
“After spending several decades helping develop and advocate for this landmark legislation, the Federal Bar Association commends Chair Lofgren and her colleagues for introducing a bill today that would facilitate a long-lasting solution to separate the politics of immigration enforcement from the needs of immigration adjudication. Having collaborated with a number of other prominent legal associations to get to this historic point, FBA remains committed to ensuring that we improve access to justice and due process for individuals appearing before immigration judges. The Constitution gives Congress the ability to create new federal courts and with a current backlog of 1.6 million cases, it is clear to our members that the time has finally come to fix a broken and ineffective system,” said Anh Le Kremer, President of the Federal Bar Association.
“The NAIJ applauds the House Judiciary leadership for introducing an Article I Immigration Court bill. Chair Lofgren, Chairman Nadler and Chairman Johnson, in introducing this legislation, are rectifying the historical mistake of having an immigration court housed in a law enforcement agency. Given the many problems facing the Immigration Court, Congress’s leadership in removing the court from the Department of Justice is welcome relief, and is a crucial step in restoring due process and court efficiency to our broken system,” said Judge Mimi Tsankov, President of the National Association of Immigration Judges (NAIJ).
The BIA’s “take no prisoners” approach to asylum seekers has helped bring the Immigration Courts into disrepute, leading some reviewing courts to suggest that EOIR has crossed the line from “fair and impartial adjudication” to “advocates for DHS Enforcement.” That’s not news to experts and human rights advocates. Despite Biden’s campaign promises to restore justice for migrants, Garland has failed to usher in a new era of “due process and fundamental fairness for all.” Albrecht Dürer, Public domain, via Wikimedia Commons
As this bill moves forward, the ongoing chaos, unfairness, disorder, dysfunction, dehumanization, and abysmal quality of decisions flowing from Garland’s Clown Courts 🤡 will get more and more attention and memorialization!
It would behoove Garland to clean house at EOIR and bring in some real judges, immigration/human rights/due process expertise, and competent judicial administrators to prepare the system for transition to Article I.
In this respect, the bill contains this provision, requiring the President and the Appellate Division ensure:
‘‘(2) the corps of immigration judges—
‘‘(A) is comprised primarily of individuals with prior legal experience in immigration law; and
‘‘(B) to the extent practicable, reflects a balance of individuals with prior legal experience in the public sector and private sector; and ‘‘(3) candidates are selected without regard to political party affiliation or perceived political ideology.
Certainly not the way EOIR has been run by DOJ politicos over the past two decades! And, to date, Garland has done little to bring about long overdue personnel changes, due process, fundamental fairness, decisional independence, quality, and professionalism!
DISCLAIMER: While I have been inspired by, and drawn on, the work of my friends Nolan & Michele, this posting is my view and does not necessarily represent either of their views on MPP, its merits, and/or the litigation challenging it.
INA section 1229a(b)(4)(A) prohibits the government from paying for lawyers to represent immigrants in removal proceedings. The pertinent part of this section states that, “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings” (emphasis added).
But there is an alternative. EOIR has a program for recognizing organizations and accrediting their non-attorney representatives to represent aliens in removal proceeds for a nominal fee, and INA section 1229a(b)(4)(A) does not prohibit the government from providing these organizations with the funds they need to expand their immigration operations.
The government established the recognition and accreditation program to increase the availability of competent immigration legal representation for low-income and indigent persons, which promotes the effective and efficient administration of justice.
Two levels of accreditation are available. Full accreditation authorizes the accredited representative to represent immigrants in proceedings before DHS, in proceedings before an immigration judge, and in appeals to the Board of Immigration Appeals. Partial accreditation just authorizes them to assist immigrants in proceedings before DHS, such as in applying for an immigration benefit.
Aliens needing low-cost legal representation for removal proceedings or to apply for asylum can find recognized organizations and accredited representatives in their area on the roster of Recognized Organizations and Accredited Representatives. Currently, there are 761 recognized organizations and 1,970 accredited representatives, but only 300 of them have full accreditation.
An organization applying for recognition must establish that it is a Federal, tax-exempt, non-profit religious, charitable, social service, or similar organization; that it provides immigration legal services primarily to low-income and indigent clients; and that, if it charges fees, it has a written policy for accommodating clients who are unable to pay the fees.
And it must establish that it has access to adequate knowledge, information, and experience in all aspects of immigration law and procedure.
An organization applying for the accreditation of a representative must establish that the representative has the character and fitness needed for representing immigration clients; that he has not been subject to disciplinary proceedings or been convicted of a serious crime; and that he has the necessary knowledge in immigration law and procedures.
Professor Michele Pistone Villanova Law
Excellent training programs are available to provide representatives with the knowledge they need to represent immigrants in removal proceedings before an immigration judge, such as the Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) — a university-based online certificate program that was established by Michele Pistone, a law professor at Villanova in August 2020, to provides the training immigrant advocates need to become accredited representatives.
VIISTA covers all of the topics needed to become an effective immigrant advocate — such as interviewing, how to work with an interpreter, how to work with migrant children, trial advocacy and, of course, immigration law.
Biden’s promise to maximize legal representation
Biden included maximizing legal representation in his “Blueprint for a Fair, Orderly, and Human Immigration System.” His plan to achieve that objective includes providing $23 million to support legal orientation programs — but orientation programs do not provide legal representation. In fact, the statement of work for the LAB contract solicitation requires orientation presenters to explain that they do not provide legal advice or representation.
Accredited representatives with full accreditation do provide legal advice and legal representation — but there aren’t nearly enough of them now to meet the need for such assistance.
Biden could use the funds he has earmarked for the legal orientation program to provide recognized organizations with the money they need to increase the number of accredited representatives — but a better solution would be for congress to provide the necessary funding.
For many asylum-seeking immigrants, an accredited representative with immigration law training may be their only hope for representation when they appear at their asylum hearings.
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Thanks for this timely and informative piece, Nolan! Amazingly, this “accessible” analysis of an under-publicized opportunity is Nolan’s 300th published op-ed on The Hill! Congratulations! 🎊🍾
Go on over to The Hill to read the full article! The excerpt published above also contains helpful links to the VIISTA Program @ Villanova.
The extraordinary, innovative VIISTA Program began with Michele’s dinner table conversation with Judges Larry “The Burmanator” Burman, Mimi Tsankov (now NAIJ President), and me following an FBA Conference in DC several years ago. I doubt that any other lawyer in America could have turned it into reality. Michele got all the grants for seed money herself — winning a prestigious Kaplan Family Foundation Grant for Innovation in the process!
Because VIISTA is modularized, available online, constantly evaluated (including, of course, by students), and updated, it is “built for rapid expansion” throughout America, as suggested by Nolan. Even now, Michele is actively looking for “partners.”
My Round Table 🛡⚔️ colleague Judge Jeffrey Chase and I were privileged to have had modest roles in VIISTA’s curriculum development and review. Additionally, our Round Table colleague Judge Ilyce Shugall is one of the exceptional VIISTA faculty.
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) A “Fighting Knightess of the Round Table,” she’s also one of VIISTA’s talented expert faculty members who knows exactly what asylum seekers need to prove to win in what currently is “America’s most dysfunctional court system!” She has “lived life on both sides of the bench!”
Recently (pre-omicron) Jeffrey and I were fortunate enough to be invited to a “VIISTA Anniversary Celebration” @ Villanova. We had a chance to meet not only folks from the Kaplan Foundation and Villanova (which has been totally supportive), but also to meet and hear from some faculty and members of the “Inaugural Class” about their achievements and their plans for the future.
This is truly “making the law better” and “delivering justice” at a grass roots level! And, as Nolan points out, expanded programs like this might be asylum seekers’ best chance of getting great representation that could be “outcome determinative.” Michele’s goal is 10,000 new representatives in 10 years! Who could doubt her ability to pull it off!
By now, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” is here to stay, at least for the foreseeable future. No matter what the lack of merits to the Fifth Circuit’s decision might be (I’m sure that its tone-deaf, disconnected from reality and humanity approach will be the subject of numerous critical commentaries and law review articles), no relief can be expected from either the right-wing Supremes or the feckless Dems in Congress.
Given that the MPP program is going to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket 🚀 science:
A Better Due-Process- Focused Approach To “Remain in Mexico:”
Better BIA. Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, fair notice, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Better Judges. Get a corps of Immigration Judges with established records and reputations for scholarly expertise in asylum, demonstrated commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Better Representation. Work with pro bono, advocacy groups, VIISTA, and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Another one of Nolan’s good ideas for VIISTA-type programs would be for Congress to provide scholarships for students (beyond those already available from Villanova). I have also gotten “anecdotal reports” that EOIR has built up an unconscionable backlog in processing of applications for Accreditation & Recognition. If confirmed, this must be immediately addressed.
Better Conditions. Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.
Indeed, the Biden Administration could and should already have put this very straightforward, achievable program in place during its first year in office, instead of “treading water” (or worse, in many cases)!
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Judge Amiena Khan, Past President, National Association of Immigration Judges (NAIJ)Hon. A. Ashley Tabaddor Past President, National Association of Immigration Judges (“NAIJ”)
From NAIJ President Judge Mimi Tsankov:
‘Finally, Some Justice for Immigration Judges Two-Year Union Busting Battle Ends as DOJ Reverses Course and Agrees to Recognize NAIJ’
Dear Friends of NAIJ,
We’re thrilled to announce that NAIJ has reached a settlement with EOIR: https://www.naij-usa.org/images/uploads/newsroom/NAIJ_Press_Release_on_ULP_Settlement.pdf. Thank you for standing by us over the past few years, especially, as we’ve stood up against the decertification effort. The unfair labor practice matters are now settled. What’s left for another day — resolution of the pending motion to reconsider awaiting a decision at the FLRA board.
Today, we celebrate this achievement, thank all those that have stood by us, and look forward to working with the Agency to improve working conditions at the Immigration Courts.
DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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Alexandra Villarreal Immigration Reporter The GuardianJoanna Walters Journalist The Guardian PHOTO: Twitter
Also, great coverage by Alexandra Villarreal and Joanna Walters from The Guardian:
Victory for US immigration judges as Biden administration recognizes union
Settlement comes after judges accused president of ‘doubling down’ on Trump’s position
In a stunning victory, US immigration judges have settled a tense dispute with Joe Biden’s administration over their effort to restore union rights taken away from them under Donald Trump.
Biden’s Department of Justice agreed on Tuesday to recognize the union as the exclusive representative for the nation’s immigration judges and follow the terms of their collective bargaining agreement, at least for the time being.
Days before reaching the settlement, the head of the federal immigration judges’ union had accused the Biden administration of “doubling down” on its predecessor’s efforts to freeze out their association even as they struggle with a backlog of almost 1.5m court cases and staff shortages, which exacerbate due process concerns in their courts.
Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), had declared herself “mystified” that Biden’s Department of Justice would not negotiate with her members despite the US president vocally and frequently touting his support for workers’ representation.
“This administration has really doubled down on maintaining the [Trump] position that we are not a valid union,” Tsankov said before the settlement.
Tsankov was appointed as an immigration judge in 2006 and is based in New York, where she also teaches at Fordham University School of Law. She spoke to the Guardian only in her union role.
After what she described as “decades” of relatively smooth relations between the NAIJ and the Department of Justice, Donald Trump capped four years of rightwing immigration policy by successfully petitioning to strip hundreds of immigration judges of their right to unionize.
The hostile move was decided by the Federal Labor Relations Authority (FLRA), an independent administrative federal agency that controls labor relations between the federal government and its employees, on 2 November 2020, the day before the presidential election.
Despite a Democratic victory and Joe Biden taking the White House pledging to undo damage done by Trump, the union remained shut out and silenced for more than a year, without a date set to hear its case attempting to restore its official status.
“I cannot understand it … Working together, as the president has stated, working with federal employees, working with unions, achieves better results,” said Tsankov.
Congrats to Judge Tsankov and former NAIJ Presidents Judge Amiena Khan, Judge Ashley Tabaddor, and all of the others who courageously and steadfastly fought against this scurrilous retaliation by Billy Barr directed against those with the guts and integrity to “speak truth to power” about the due process disaster in our Immigration Courts!
Yes, it’s a great victory for the NAIJ and “good government.” But, I’m with Judge Tsankov here: Why on earth did it take so much time and wasted effort for the Garland DOJ to finally “do the right thing?”
This should have been “day one stuff” for Garland — a true “no brainer.” The real “stunner” here is that it took so long!
The NAIJ was and remains “the only game in town” when it comes to expert professional judicial training @ EOIR! The rest of EOIR’s professionalism and training program could be characterized as a shambles — that is, if it actually existed, which it effectively doesn’t.
Compare EOIR “management’s” pathetic attempts at training with what the “real pros” at NAIJ and the VIISTA Program at Villanova (training for non-attorney reps) under Professor Michele Pistone have developed over the past year. There is no comparison — NAIJ and VIISTA win, hands down!
Yet, rather than harnessing this available energy, talent, expertise, and creativity, “Team Garland” has dawdled away the time, making few material inroads into the toxic culture and broken pieces of our Immigration Courts. Ask almost any practitioner how much their life and the lives of their clients in Immigration Court have “improved” under Garland! You’ll get an “earful” — as I do on occasion.
A new group of progressive practical expert leaders at EOIR should have made NAIJ, representatives of the private bar and NGOs, and representatives of ICE OPLA part of an “expert advisory team” working cooperatively to reform EOIR, institute merit-based hiring practices, and reduce the backlog without more wasteful gimmicks and in full compliance with due process.
Instead, most of the first year of Garland’s DOJ tenure has been wasted fighting battles that never should have been fought, irrationally alienating would-be allies who could have provided creative solutions to endemic problems, and engaging in yet more “Aimless Docket Reshuffling” even while continuing to build unnecessary backlog. The actual state of due process at EOIR has remained deplorable, morale at record lows, and the frustration and anger of attorneys subjected to Garland’s ongoing mess growing.
Even the “lowest of low-hanging fruit” — speedy approvals of applications for recognition and accreditation of non-attorney representatives involving graduates of VIISTA and other top NGO programs have been inexplicably allowed to languish. A process that should easily be completed in 30-60 days in most cases delayed for months, perhaps years, under unrealistically low staffing and “low priority” assigned by habitually negligent and unresponsive to public needs “EOIR Management.” This, at a time when there is a dire crisis in representation that VIISTA and other “top drawer NGOs” are fighting and innovating to solve.
(Remember, of course, that former EOIR Director James McHenry improperly “took over” the R&A program, which has become less, rather than more, functional and timely as a result. That’s a good measure of how inane EOIR “management” became under Trump. But, although McHenry is gone, it’s not that there has been drastic improvement under Garland. The lack at EOIR HQ of those who truly understand the Immigration Court process and could solve problems and “make the trains run on time,” without stomping on anyone’s rights, is simply mind-boggling!)
But, however bad EOIR is and remains, the “real buck stops with Garland” who has miserably failed to address in a timely, professional, systemic, rational manner the ongoing mess in his “EOIR Star Chambers!”
Belated re-recognition of NAIJ, while welcome, won’t solve this problem at Garland’s EOIR! — “Justice” Star Chamber Style, Public Realm — or this:BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
The public deserves better — much better!
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
An End to a Highly Controversial Quota System Imposed on Immigration Judges
This week Immigration Judges received an email message from Chief Immigration Judge Tracy Short stating that the performance metrics imposed by the Trump administration which violated judicial ethics are now “suspended.”
WASHINGTON –A deeply flawed and inefficient U.S. Department of Justice program that evaluated Immigration Judges primarily on the number of cases they heard, has been “suspended.” The DOJ will no longer evaluate judges on the number of cases they decide Chief Judge Tracy Short wrote in an email sent to the nation’s roughly 500 Immigration Judges this week.
Over the past three plus years, Immigration Judges have looked over their shoulders, worried about being disciplined, just for doing their jobs — providing due process.
“This week’s actions by the Department of Justice under Executive Office for Immigration Review Director David Neal are a step in the right direction toward restoring a greater measure of integrity to our nation’s Immigration Courts,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Our organization looks forward to working with management to restore a fairer process that allows judges to focus on doing their jobs properly. The performance metrics developed by the Trump administration were a violation of judicial ethics, they belong in the trash bin.”
“The Agency is in the process of developing new performance measures, drawing from past successful measures and appropriate input, that will accurately reflect the workload of an immigration judge,” the chief judge wrote in his emailed message. “These new performance measures will focus on balance and equity for the various types of docket assignments.”
In 2018, then U.S. Attorney General Jeff Session imposed a quota of 700 decisions per year on each Immigration Judge, tied to performance reviews, regardless of the complexity of the cases.
The Trump administration also attempted to silence NAIJ from speaking out on the quota system and other policies by decertifying the union. While the union-busting efforts of the previous administration were not completely successful, full collective bargaining rights have yet to be restored to NAIJ.
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
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Hon. David L. Neal Director Executive Office For Immigration Review USDOJ PHOTO: C-SPAN
Can David Neal bring all the real parties in interest “to the table,” fashion workable, realistic judicial policies and procedures driven by due process and the realities of Immigration Court practice, keep DOJ’s political meddling at bay, and then tap “new talent” that can actually implement positive change in a judicial, non-bureaucratic manner that achieves “systemic buy-in?” Does he even want to? If so, will Team Garland empower him to succeed, or undermine him?
One thing in Director Neal’s favor: He already retired from EOIR once and presumably could do so again if pressured to elevate political agendas over due process and best practices.
On the flip side, at least one other Director in that same position chose to “go along to get along” with decisions and policies from the DOJ that actively undermined due process and substantially decreased confidence in government.
We’ll see whether the NAIJ’s “cautious optimism” about the “Neal Era @ EOIR” is justified or just another dashed dream about due process, fundamental fairness, and best practices!
