🗽⚖️ EXPERT URGES U.S. TO COMPLY WITH INTERNATIONAL NORMS ON GENDER-BASED PROTECTION — Current “Any Reason To Deny” Restrictive Interpretations & Actions Are A Threat To Women Everywhere & Unnecessarily Bog Down Already Burdened System With Unnecessary Legal Minutia, Says Professor Karen Musalo In New Article!

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:

A B ST R A CT

The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.

Here’s a link to the article: https://academic.oup.com/ijrl/advance-article/doi/10.1093/ijrl/eeae009/7656821?utm_source=authortollfreelink&utm_campaign=ijrl&utm_medium=email&guestAccessKey=298cbf81-f24c-455a-9c94-4be57b8c649f

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Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:

Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)

Along the same line of thinking, in December 2020 I wrote a blog post of my wish list for 2021: https://www.jeffreyschase.com/blog/2020/12/14/a-wish-list-for-2021.

One of the items was as follows:

Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).

As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.

Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.

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

I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.

I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!

Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others.

This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims.

At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis.

Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate.

The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.

The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g., https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.

One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration.

🇺🇸Due Process Forever!

PWS

05-08-24

⚖️⚔️🛡️ ROUND TABLE CHAMPIONS NAIJ, RIPS EOIR “GAG ORDER!” — PLUS, BONUS COVERAGE: “NAIJ Is An Essential Force For Judicial Independence!” — A “Mini-Essay” By Hon. “Sir Jeffrey” Chase!

Round Table, Gag, Chase Essay

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 Judges

Knightess of the Round Table

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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!

NOTE: I am a proud retired member of the NAIJ.

🇺🇸 Due Process Forever!

PWS

03-26-24

😘 NEW “DREAM TEAM” FOR EOIR REFORM? — Judge (Ret.) Dana Leigh Marks & Sen. Chuck Grassley (R-IA) Blast 💣Garland’s “Muzzling” Of NAIJ, Demand Change! 🤯

Star Chamber Justice — “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)”

https://www.lexisnexis.com/community/insights/legal/immigration/b/outsidenews/posts/exclusive-hon-dana-leigh-marks-on-eoir-gag-order

Judge Marks says:

. . . .

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!”

https://www.grassley.senate.gov/imo/media/doc/grassley_to_doj_-_eoir_disclosures_to_congress.pdf

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.

The idea that the SET is “necessary” to promote “public confidence in IJ impartiality,” is preposterous in light of the growing body of documentation of racism, anti-immigrant bias, and defective decision-making within Garland’s dysfunctional courts. For sure, EOIR has an extreme “public confidence and institutional bias problem!” But, it’s got nothing to do with the NAIJ speaking to Congress or in any other public forum. Ask the good folks over at the Ohio Immigrant Alliance who just issued a scathing report on racism and other grotesque institutional abuses going on at EOIR on Garland’s watch! See https://immigrationcourtside.com/2024/03/06/%f0%9f%a4%90-busted-eoir-squelches-ijs-union-administration-moves-to-silence-outspoken-uncensored-critic-of-dysfunctional-court-system-news-comes-on-heels-of/.

Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:

https://www.justsecurity.org/66433/know-your-rights-conversations-with-congress/

More “Unforced Errors” By Garland

Here’s what Garland should be doing to promote “order at the border:”

Prioritize fairness and efficiency in asylum and immigration court adjudications.
Respect and maintain the fundamental right of migrants to seek asylum at the border, regardless of manner of entry or transit.

https://wp.me/p8eeJm-9PM

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.

🇺🇸 Due Process Forever

PWS

03-14-24

😎⚖️🗽

⚖️🤯👩🏽‍⚖️👨🏻‍⚖️ AS GARLAND’S BACKLOG HITS 3 MILLION, WAY PAST TIME TO CLEAN HOUSE, 🧹 BRING IN COMPETENT EXPERTS, 🧐 & START IMPLEMENTING THE “MPI PLAN” FOR BACKLOG REDUCTION & DUE PROCESS! — Empower “The Magnificent Seven” To Take The Field & Bring Order From Chaos!

As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

https://trac.syr.edu/reports/734

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf

Executive Summary

The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.

For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely

to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.

Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.

While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.

Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals

2 million

cases in the backlog

About 650

immigration judges nationwide

Less than 500

cases completed per judge in most recent years

1

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.

Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.

Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.

Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at

the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.

EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.

The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.

Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as

The rate at which asylum claims are denied varies widely, from

1% with one judge to

100%

with another in FY 2017-22

2

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).

Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.

One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.

Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.

This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:

Strengthen the immigration court system’s management and efficiency

► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.

1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).

3

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.

► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.

► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.

► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.

► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it

► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.

Upgrade how the courts use technology

► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.

Increase access to legal representation

► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.

4

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.

► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.

Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

BOX 1
About the Rethinking U.S. Immigration Policy Project

This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.

The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.

To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.

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

Read the full report at the link.

Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).

It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.

Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)

Bring in these experts:

Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)

Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!

This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”

This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!

🇺🇸 Due Process Forever!

PWS

12-19-23

🗽🧑‍⚖️⚖️ SHE’S HERE, SHE’S THERE, SHE’S EVERYWHERE! — Judge Dana Leigh Marks “Does DACA” On TV!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges, Member, Round Table of Retired Immigration Judges

Catch her here on this clip:

https://public.latakoo.com/b0a3501b17da92539cb8e16c1e6adb5en

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

My friend might have “retired,” but “Nana Dana” as she now calls herself sure hasn’t slowed down! And, the rest of us are glad she’s still leading the way!

Dana’s retirement was a big loss for EOIR (at a time they can ill-afford to lose experienced talent), but a big gain for our Round Table, the rest of the NDPA, and Dana’s granddaughter!

🇺🇸 Due Process Forever!

PWS

09-22-23

⚖️👩🏼‍⚖️ HON. DANA LEIGH MARKS: DOJ’S PROPOSED RULE ENHANCING IMMIGRATION COURT INDEPENDENCE & EFFICIENCY IS A “BIG DEAL!”

From the Los Angeles & San Francisco Daily Journal:

https://drive.google.com/file/d/1Fmf6Fqu_Hl8hkIxclUllNEZLQ2LGouU9/view?usp=sharing

The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.

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

Read Dana’s complete article at the link.

Many thanks my friend for your incisive, outstanding analysis! It’s astonishing and quite disturbing the amount of absolute “bunk” and racially-focused misinformation DOJ and EOIR foisted on the public under Trump. Indeed, EOIR under Trump pushed out a scandalously false and misleading bogus “fact sheet” smearing asylum seekers and their lawyers. See, e.g., https://immigrationcourtside.com/2019/05/13/special-roundtable-of-former-immigration-judges-blasts-eoir-director-mchenry-for-spreading-lies-misrepresentations-political-pandering-undermining-judicial-independence-and-gro/.

It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!

Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!

🇺🇸 Due Process Forever!

PWS

09-21-23

😟MONTANA IS “FLYOVER COUNTRY” FOR EOIR BUREAUCRATS: Due Process & Public Service For People Below, Out Of Sight, Out Of Mind! — 1,000 Mile Drives, Required In Person Hearings In Other States, Different Circuits, Different Rules Producing Inconsistent Results, Frustrated Lawyers — Human Lives & Justice In Large, Thinly Populated States Just More “Collateral Damage” From A Failed System! — Quoting Montanan NDPA Superstar 🌟 Kari Hong & Members Of The “Round Table!” 🛡⚔️

Carrie La Seur reports for the Daily Montanan:

https://dailymontanan.com/2023/02/05/without-any-immigration-courts-montana-is-tough-for-immigrants-looking-to-build-new-life/

Without any immigration courts, Montana is tough for immigrants looking to build new life

BY: CARRIE LA SEUR – FEBRUARY 5, 2023 9:58 AM

The drive from Billings to Las Vegas is nearly a thousand miles. That’s 14 to 15 hours of windshield time, winding through some of the roughest, most isolated country in the continental U.S.

Imagine that U.S. forces recently evacuated you from Afghanistan, where the advancing Taliban would have killed you as a member of the Afghan military who fought them alongside Americans. You retreated under orders, unable to reach your wife and children, left behind in hiding in Kabul. Now, alone in Montana, struggling to improve your English, you must make the journey to Las Vegas in winter for your first immigration hearing.

You’ve come through war, exile from the only home you’ve ever known, separation from your family, and imprisonment in the first country you arrived in, but the U.S. Customs and Immigration Service still has a few curveballs for you.

You’ve had only a few weeks’ notice of your hearing, barely time to figure out how to make the trip. You’ve managed to borrow a car, but the owner has to work and can’t come with you. Flights are wildly expensive and you’ve survived first on savings and charity, now on a temporary work permit, so the road is the best option, but the drive is risky.

You’re lucky enough to have a pro bono lawyer appearing for you by video, but you’ve never met her in person. For most people in your situation, there is no lawyer. Although your life and those of your family are on the line, you have no right to representation.

This is the situation for dozens, possibly hundreds, of new Montana residents from Afghanistan, Ukraine, Venezuela, and other nations in crisis, including family members of U.S. citizens. The U.S. allows them to enter and remain in this country because they have credible fears of persecution in their home country and therefore a right under U.S. and international law to seek asylum. Montana nonprofits and religious organizations are scrambling to respond.

Since the U.S. pullout from Afghanistan in 2021, more than 76,000 Afghan nationals have arrived in the U.S., the largest wave of wartime evacuees since the fall of Saigon during the Vietnam War. The New York Times recently published a map of the distribution of Afghan refugees, with a few pinpoints in Montana, compared to thousands of arrivals in San Diego, Houston, and D.C. Many more are waiting for permission to come. In most cases, their lives are in danger from the Taliban.

Until 2016, a Montana resident in immigration proceedings could go to Helena, where a traveling immigration court staff heard cases several days a month. Budget cuts eliminated the court toward the end of the Obama administration. There was pressure to shift resources to the southern border, so staff relocated from more northern locations.

“Detailing” judges, as it’s called when judges move to different locations to hear cases, is expensive (travel, hotel, office space). According to the agency, immigration judges handle about 700 cases a year – the backlog is approaching 2 million – so Montana’s relatively light caseload makes the Helena court low on the priority list.

Now, Salt Lake City, Las Vegas, and Denver are common immigration court assignments for Montana residents. Personal appearances are usually mandatory. Travel is a costly burden for displaced people struggling to adapt to a new country. The distance is also a burden for lawyers, who often can’t spare the time to travel for brief hearings that are frequently rescheduled at the last minute. There can be jurisdictional problems, too. Montana is in the Ninth Circuit, a huge appellate region that includes all the states on the west coast, Nevada, and Idaho.

In the 9th Circuit, judges must give greater weight to testimony about what happened in other countries, and case law makes it more difficult to find that an immigration witness isn’t credible. That’s fine if a Montana resident goes to a hearing in Las Vegas, also in the 9th Circuit, but Salt Lake City and Denver are in the 10th Circuit. If a judge rules against a Montana resident using 10th Circuit law, when 9th Circuit law would have given a more favorable result, that’s just bad luck.

Many Montana lawyers may not be familiar with 10th Circuit law, making it that much more difficult for Montana residents to find a qualified attorney.

Montana lawyers with expanding immigration practices are beginning to ask, why Helena’s immigration court couldn’t be restored? Kari Hong, a Missoula attorney with the Florence Project, an immigration rights organization, points out that many clients have trouble finding qualified lawyers where multiple jurisdictions are involved, and differences in appellate law give some Montana residents worse judicial outcomes based on a random court assignment.

As a practitioner, Hong notes, it’s harder to show documents in a remote hearing, or be sure that everyone is looking at the same document. Interpretation is more difficult. Not being in the courtroom with a client makes it hard to establish rapport, and make sure that the judge is hearing everything. Attorneys are legitimately concerned, says Hong, about providing effective counsel in remote hearings that could be located anywhere in the country.

The U.S. Customs and Immigration Service has office space in Helena, where it handles immigration biometrics checks. so the cost of bringing in an itinerant immigration judge to handle Montana residents’ cases might be only a staffing and travel expense. But the appointment of more immigration judges and their assignments have become political issues wrestled over in Washington, D.C.

Paul Wickham Schmidt, a Wisconsin native, served as a career immigration lawyer and judge, chaired the Board of Immigration Appeals in the 1990s, and is now a law professor at Georgetown and formerly at George Mason University. He writes about dysfunction in the U.S. immigration system on his blog, Immigration Courtside. In an interview, he’s outspoken about how immigration courts have become a disgrace to the fundamental American value of justice for all.

“Today’s DOJ has allowed immigration courts to become weaponized as a tool of immigration enforcement,” says Schmidt. “For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial immigration judges as ‘in partnership’ with DHS enforcement. Attorney General (Merrick) Garland has done little to dispel this notion.”

Schmidt talks about the “Dred Scottification” of refugees, referring to the US Supreme Court’s 1857 decision in Dred Scott v. Sandford, holding that all people of African descent were not U.S. citizens and therefore could not sue for their rights in U.S. federal court.

The current U.S. immigration system, k says, treats refugees as sub-human, unworthy of rights long enshrined in U.S. and international law. It uses the court system to send political messages (for example, “Don’t come”) to refugees, turning the courts into political weapons.

Americans, says Schmidt, should be disgusted.

Part of the problem in maintaining the integrity of immigration courts is that immigration judges are appointed by the Attorney General and serve at his or her pleasure. They don’t have the independence of federal judges confirmed by the U.S. Senate under Article III of the Constitution, or the protections of Article I judges, like bankruptcy judges. They don’t control their dockets. Scheduling is done by non-judicial administrators, who book judges and lawyers so tightly that there’s no way, according to Schmidt, to do their jobs competently.

Immigration courts also lack necessary administrative support.

Hiring court administrators is done through a slow, difficult hiring process, and administrators struggle with inadequate space and tech support, which handicaps the whole immigration court system. In one example of the slow pace of progress in the immigration system, cases handled by the Executive Office for Immigration Review finally went electronic in 2022 – a quarter century after the U.S. federal courts transitioned to electronic filing, using a different system.

Many immigration judges are shouting for reform. Judge Dana Leigh Marks of the San Francisco Immigration Court, a past President of the National Association of Immigration Judges, says: “Immigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”

Highly qualified people continue to leave the agency rather than uphold a farce.

“There are many of us who just feel we can’t be part of a system that’s just so fundamentally unfair,” said Ilyce Shugall, who quit her job as an immigration judge in San Francisco in 2019 and now directs the Immigrant Legal Defense Program at the Justice & Diversity Center of the Bar Association of San Francisco. “I took an oath to uphold the Constitution.”

Schmidt writes on his blog about the U.S.’s “disgracefully dysfunctional immigration courts,” which offer no right to legal representation. Having an attorney in immigration proceedings makes a huge difference, statistically speaking. For recently arrived women with children fleeing violence, the success rate of represented applicants is 14 times higher.

To fix the major problems with the system, Schmidt has a short list of big changes he’d like to see:

Create an Article I immigration court system. Article I courts are legislative courts created by Congress, without full judicial power to decide Constitutional questions, but with enough independence not to be controlled by political appointees.

The Board of Immigration Appeals needs to become a true appellate court.

Reverse reforms put in place by Attorneys General William Barr and John Ashcroft, intended to reduce the capacity of the immigration courts to do the work assigned to them by Congress.

Remove judges who deny 100% of asylum applications.

At the management level of the agency, hire professional court managers focused on providing due process and making the system work efficiently.

Improve automation, e-filing, and information-technology capability.

Montana residents are a tiny constituency of perhaps hundreds in the vast U.S. immigration system, processing millions of people, but they demonstrate what’s broken. Somewhere under the Big Sky is an Afghan evacuee who saved military aircraft from falling into the hands of the Taliban during the U.S. retreat from Kabul. He’s desperately worried about his wife and children trapped in Kabul, where the Taliban have identified them as the family of a soldier who supported the Americans.

They exist in hiding, while the Taliban-controlled passport agency charges thousands of dollars to produce a legal travel document. As his asylum application winds its way through the system, he texts his wife every day.

“All I can think about is making them safe,” he says.

REPUBLISH

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Carrie La Seur is a Billings novelist and attorney, descended from 1860s Montana settlers and a long line of one room schoolhouse educators. She works pro bono with asylum seekers. She can be found on Twitter @claseur

MORE FROM AUTHOR

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Thanks, Carrie!

“All I can think of is making them safe.” Given the facts in Carrie’s article, this Afghan case should have been a “no-brainer” asylum grant at the USCIS Asylum Office. Having made it to EOIR, it would be a candidate for a 30 minute “stipulated grant” in a properly functioning and professionally led Immigration Court system.

That cases like this, clear asylum grants that shouldn’t even reach EOIR, linger in the system, is symptomatic of the endemic dysfunction in America’s Immigration Courts. It also illustrates the failure of the Biden Administration and America’s “top lawyer,” A. G. Merrick Garland, to aggressively stand up for the legal rights of immigrants and to apply common sense, expertise, and practical scholarship to our dysfunctional immigration and human rights bureaucracy.

But, all EOIR can think about is how human lives — and justice — in Montana and elsewhere really aren’t very important in the overall bureaucratic scheme. And, it’s not not like A.G. Merrick Garland and his minions, safely ensconced in their offices at 10th & Penn in downtown DC, are thinking about the human carnage left in EOIR’s dystopian wake, in Montana and elsewhere!

We all “get” that Montana’s problems are “small potatoes” in the context of EOIR’s ever-expanding 2.1 million case backlog! Yet, EOIR could serve Montana in a way that preserves due process, promotes consistency, encourages representation, and delivers “good public service” without materially affecting their backlogs elsewhere or “breaking the bank.”

EOIR’s approach to the “real problems” of the “small-population” State of Montana and its very human residents is sadly reflective of Washington’s overall approach to immigration and human rights: We won’t solve the “little problems” that could improve individual lives because we can’t solve the “big problem” of so-called “comprehensive immigration reform.”

I don’t buy it! There are plenty of ways that DOJ/EOIR could successfully address many of the “little problems” that would improve administration and public service in places like Helena. DOJ/EOIR does not have a “stellar record” for competent management or fiscal responsibility, to say the least.

For example, the DOJ Office of Inspector General recently found that EOIR had for years mismanaged multi-million dollar technology contracts.https://wp.me/p8eeJm-87P.

They have also wasted money on so-called “Immigration Judge Dashboards” so that they could monitor IJ “performance” under much-criticized and now abandoned “production quotas.”

Certainly, with a little administrative ingenuity, EOIR could scrape together the modest amount of resources it would take to conduct periodic hearings in Helena and thereby provide due process to Montanans caught up in EOIR’s dysfunctional system.

Without affecting overall backlogs or big budget increases, EOIR could:

Bring back one or more retired IJ’s as “rehired annuitants” to work part time on the Helena docket; or
Designate one or more IJs at the numerous so-called “EOIR Adjudication Centers” to hear cases in Helena by Televideo; or
Use Helena for piloting an authorized (but, to my knowledge, never implemented) “phased retirement” program for training and mentoring new IJ’s by those seeking to reduce their work hours as they move toward retirement; or
“Slim down,” or better yet eliminate, the unnecessary and duplicative “Office of Policy” created at EOIR HQ under Trump (why would an agency comprised of supposedly independent quasi-judicial officials need a “Bureaucratic Politburo?”) and allocating the resources to case adjudication — supposedly the ”lifeblood of EOIR;” or
Reprogram some of the unnecessary, non-adjudicating, fancy-titled “spear carrier” positions wandering the halls of the bloated, yet inept, EOIR bureaucracy in Falls Church.

Those are just for starters. Like its failed counterpart, USCIS, EOIR needs an independent re-examination of processes, quality control, and accountability —all of which currently are failing the public — in Montana and elsewhere! EOIR also needs new, dynamic, professional, problem-solving judicial administration by experts appointed from OUTSIDE the dysfunctional EOIR bureaucracy and the hapless gang of politicos at “Main Justice.”

The only kind of “equal justice” that seems to be an objective at EOIR today is to make sure that public service is equally bad across America.

Notably, as shown in Carrie’s article, the EOIR debacle is affecting virtually every county and every nook and cranny in America. No American community is too far removed from the DOJ/EOIR “bureaucracy of pain and failure” to avoid the adverse consequences of this monumental, and unnecessary, meltdown at the “retail level” of American Justice; even those humans residing in “EOIR Flyover Country!”

🇺🇸 Due Process Forever!

PWS

02-08-23

🇺🇸🦸🏻‍♀️⚖️🗽👩🏻‍⚖️ PROFILE IN GREATNESS! — Kathleen Guthrie Woods Sits Down With One Of America’s Most Consequential Jurists, NDPA Hall-of-Famer 🥇 Judge (Ret.) Dana Leigh Marks On Leading & Inspiring From the Gritty Trenches Of American Justice & Her Exciting New Role As “NanaDana!” 🥰

https://www.sfbar.org/sfam/q3-2022-unpacking-the-legacy-of-judge-dana-leigh-marks/

By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”

Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.

Who is Judge Marks, and how did she positively influence and impact so many lives?

. . . .

Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.

. . . .

“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.

“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”

“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”

*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).

Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).

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

Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!

Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.

I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.

As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!

As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!

Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”

We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!

Due Process Forever! 🗽😎⚖️👩🏻‍⚖️

Your friend & colleague, forever, ❤️

PWS

11-22-22

💤😴GARLAND DOZES AS COURTS CRUMBLE!☠️

Rip Van Winkle — “Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”

https://www.thedailybeast.com/fatally-flawed-immigration-court-system-should-be-taken-out-of-its-misery

Scott Bixby reports for The Daily Beast:

As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.

But breaking the system might be the only way to save it.

On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”

But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.

“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”

One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”

“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”

Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.

“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.

“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”

With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.

That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.

The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.

But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.

“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”

….

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Read Scott’s full article at the link.

One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.

White Nationalists Jeff “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog.

As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!

While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!

But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.

One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges! It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster.

What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.

Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.

Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!

There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!

There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!

A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.

Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as his broken “court” system veers off the road and goes down the embankment.

It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.

But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.

🇺🇸Due Process Forever!

PWS

04-14-22

😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

CODE RED! 🆘☠️⚰️IMMIGRATION COURTS FAIL AS GARLAND FLAILS — With Human Lives In The Balance & A Catastrophic Collapse Of System On The Horizon, Garland “Rearranges The Deck Chairs On The Titanic!” — “Aimless Docket Reshuffling” is a “Clown Court Strategy” 🤡 But, It’s No Laughing Mater For The Asylum Seekers & Their Lawyers Stuck In Garland’s Dysfunctional Mess!🤮

Deepa Fernandes reports for the SF Chron:

Waiting nine years for an asylum hearing in San Francisco https://www.sfchronicle.com/bayarea/article/An-El-Salvadoran-attorney-has-waited-five-years-16739505.php

A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.

Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.

In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.

But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.

A growing backlog

Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.

“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”

Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.

The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.

“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.

This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.

Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.

Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.

“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.

Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.

An analysis by the Migration Policy Institute shows that in 17,000 expedited docket cases under previous administrations, the majority of immigrants lacked legal representation and 80% of them were ordered removed without even being in court.

History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.

“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”

. . . .

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

Woman Tortured — “What if Garland had to hang out with us in his backlogs?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read Deepa’s full article at the link.

Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!

The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.

But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.

Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.

As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.

Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”

Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!

Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.

I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!

Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”

Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!

Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!

Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.

Ah, Yes, What Timing!

Just as I was posting this, my friend, Professor Lindsay Muir Harris at UDC Law published what I call the “Practical Scholars Compendium” to the missed opportunities that Garland and other members of “Biden’s Gang With Neither Vision Nor Moral Courage” have been compiling, as documented on Courtside and other blogs! See https://lawprofessors.typepad.com/immigration/2022/01/immigration-article-of-the-day-asylum-under-attack-by-lindsay-harris.html

Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.

Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.

Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.

Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.

It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

PWS

01-02-22

GIBSON REPORT — 08-02-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group

ALERTS

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

Masks are required in federal buildings again, regardless of vaccination status

Rescheduling Biometrics Services Appointments: Written requests no longer accepted.

EOIR: COVID FAQs

Updated OPLA NYC PD Instructions: Edited by OPLA for clarity (attached)

NEWS

DHS Announces Registration Process for Temporary Protected Status for Haiti

USCIS: Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from Aug. 3, 2021, through Feb. 3, 2023. Haiti TPS applicants are eligible to file Form I-821 online.

The Senate Has Confirmed The First Woman and First Person of Arab And Mexican Descent To Direct US Citizenship and Immigration Services

Buzzfeed: The agency has not had a Senate-confirmed leader in more than two years, even though it’s integral to the immigration system.

Immigration Court Cases Jump in June 2021; Delays Double This Year

TRAC: The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million.

U.S. Can Expedite Removal of Migrant Families, Biden Administration Says

NYT: After a fast-tracked screening at the border, the United States can turn back families it determines do not qualify for asylum. Immigration advocates say the decision denies due process. See also U.S. expected to keep border expulsions policy as Delta variant cases surge.

Processing delays leave unused slots, “wasted” green cards

ImmProf: A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.

ICE May Have Deported as Many as 70 US Citizens In the Last Five Years

AIC: All told, available data shows that ICE arrested 674 potential U.S. citizens, detained 121, and deported 70 during the time frame the government watchdog analyzed.

Biden signals support for Democrats’ plan to advance immigration changes unilaterally, via a budget bill.

NYT: Mr. Biden said on Thursday night that White House staff were “putting out a message right now” that “we should include in the reconciliation bill the immigration proposal.”

Biden releases 21-point immigration plan amid bipartisan criticism

Hill: Although the document is deeply critical of the Trump administration, it leads with border management, relegating the Biden administration’s “root causes” initiative to the last section.

These immigrants have one shot to come to the US. But Biden has to act.

Vox: [D]iversity visa lottery winners who applied for visas amid the Covid-19 pandemic now risk losing their opportunity to come to the US — in part because the State Department has continued the Trump-era policy of deprioritizing their applications.

32 Children Who Were Deported To Guatemala Last Year In Violation Of A Court Order Have Yet To Be Brought Back

Buzzfeed: Thirty-two unaccompanied immigrant children who were deported to Guatemala despite a judge’s order have yet to be brought back to the US to apply for asylum, six months after the government admitted it was in the wrong. Now, immigration advocates are ramping up pressure on the Biden administration to speed up the process.

U.S. attorney general tells Texas to rescind immigrant COVID-19 order

Reuters: Garland’s letter comes just a day after Abbott signed the order, which states that “no person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants” who have been detained by federal immigration officials for crossing the border.

New law will effectively end immigrant detention in Illinois

AP: Unless there’s a legal challenge or other exception, ICE’s options are to either transfer current detainees in Illinois to other states or release them.

The IRS erroneously rejected child tax credit payments for some families with an immigrant spouse

WaPo: “The IRS is aware some taxpayers who filed tax returns with ITIN numbers did not receive their child tax credit payment for July. We have worked expeditiously to correct this issue and these taxpayers will start receiving payments in August. All impacted taxpayers will receive their July payment.”

LITIGATION/CASELAW/RULES/MEMOS

Advance Copy: USCIS Notice of Designation of Haiti for TPS

Advance copy of USCIS notice announcing the designation of Haiti for Temporary Protected Status for 18 months, effective 8/3/21 through 2/3/23. The notice will be published in the Federal Register on 8/3/21. AILA Doc. No. 21073002

EOIR Stops Using “Alien” PM 21-27

Alien->Respondent, applicant, petitioner, beneficiary, migrant, noncitizen, or non-U.S. citizen;

Undocumented alien or illegal alien->Undocumented noncitizen, undocumented non-U.S. citizen, or undocumented individual;

Unaccompanied alien child->Unaccompanied noncitizen child, unaccompanied non-U.S. citizen child, or UC.

BIA On Tenn. Statutory Rape: Matter Of Aguilar-Barajas

Lexis: Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) (1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). (2) The Supreme Court’s holding that a statutory rape offense does not…

8th Circ. Won’t Nix Deportation Under Child Abuse Rule

Law360: The Eighth Circuit refused on Thursday to review a Honduran man’s bid for deportation relief reserved for victims of child abuse, saying the government had discretion to decide he didn’t deserve exemption because of his criminal history.

Split 9th Circ. Denies Deportation Review Of Vague Conviction

Law360: A split Ninth Circuit panel denied a Mexican woman’s petition for review of her deportation, which was previously blocked due to the ambiguous nature of her drug conviction, citing a recent U.S. Supreme Court ruling that an unclear conviction alone cannot save an applicant’s case.

CA9 On CIMT, Divisibility, Categorical Approach: Maie V. Garland

Lexis: Maie v. Garland “Maie’s petition contends that his petty theft convictions are not categorically CIMTs. The government’s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie’s argument was not waived. Because Maie’s argument presents an issue we have yet to address in a published opinion, we ordered supplemental…

CA9 On Burden Of Proof: Romero V. Garland

Lexis: Romero v. Garland “Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance of the evidence” burden from 8 C.F.R. § 1240.8(d) applies. … [W]e remand for the BIA to reconsider whether Romero met his burden to show by…

New Birthright Citizenship Rules End LGBTQ Mom’s Suit

Law360: An LGBTQ American expat is closing down her lawsuit seeking to obtain citizenship for her daughter born overseas, following a policy change from the Biden administration that allowed the child to secure a passport even though she’s not biologically related to a U.S. citizen.

United States Files Lawsuit Challenging Texas Governor’s Executive Order Targeting Migrant Transportation During COVID-19

AILA: The United States filed a lawsuit in federal district court against Texas and its governor, Greg Abbott, alleging that the governor’s 7/28/21 executive order relating to the transportation of certain migrants during the COVID-19 pandemic is unlawful. (United States v. Texas, et al., 7/30/21) AILA Doc. No. 21080239

Biden administration sued by ACLU over migrant expulsions

Politico: The American Civil Liberties Union on Monday announced it will resume a lawsuit against the Biden administration to force an end to the use of a provision of U.S. health code known as Title 42 to expel migrant families arriving at the border.

DHS Issues Statement on Expedited Removal Flights for Certain Families

AILA: DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras. AILA Doc. No. 21080231

DOS Announces Priority 2 Designation for Certain Afghan Nationals and Their Eligible Family Members

AILA: DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation granting U.S. Refugee Admissions Program access. Notice outlines eligibility. AILA Doc. No. 21080240

USCIS Announces Opening of New Asylum Office in Tampa, Florida

AILA: USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.AILA Doc. No. 21080238

DHS Semiannual Regulatory Agenda

AILA: DHS published its semiannual regulatory agenda providing a summary of projected regulations, existing regulations, and completed actions of DHS and its components. (86 FR 41226, 7/30/21) AILA Doc. No. 21080237

RESOURCES

AILA: Practice Pointer: Best Practices for Preparing and Filing Form G-28

AILA: Attorney Obligations When Posting on Social Media

AILA: Bite-Sized Ethics: Asylum and Adult Mental Impairment

AILA: Practice Alert: Interview Notices for IV Appointments at Ciudad Juarez Being Sent Within Two Weeks of Interview

Asylos

Afghanistan: Capacité de renseignements et d’intimidation des talibans au sujet de soldats afghans Hazaras (ASI2021-03)

Honduras: Gangs Targeting Female Business Owners (AME2021-07)

CGRS: Matter of A-B- III and Matter of A-C-A-A- II: Litigation Strategies Post-Vacatur

CLINIC: All About Parole Practice Advisory

CLINIC: What is Happening at the U.S. Embassies/Consulates Abroad?

CLINIC: Updated Practice Advisory: Firm Resettlement Considerations in the Wake of the “Migrant Protection Protocols” Wind-Down

CLINIC: Attorney General Garland Vacates Matter of A-B- and Matter of L-E-A-

CLINIC: Texas Judge Blocks Approval of New DACA Applications

CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

CLINIC: Analysis: The Trump Administration Used the Administrative Appeals Process to Dramatically Alter Asylum Law

Harvard: Ninth Circuit Court on Haitian Firm Resettlement

ILRC: Health and Safety for Young Migrants: Recommendations for Supporting Unaccompanied Youth

IRAP has relaunched its refugee self-help website, iraplegalinfo.org

UI: Three in 10 Adults in California Immigrant Families with Low Incomes Avoided Safety Net Programs in 2020

USCIS: DACA FAQs

White House: FACT SHEET: The Biden Administration Blueprint for a Fair, Orderly and Humane Immigration System

EVENTS

8/4/21 Informational Webinar on Partial to Full Accredited Representative Initiative 2021

8/4/21 NYIC Immigration Legal Updates

8/9/21Legal Writing For DOJ Accredited Representatives

8/10/21DACA Policy Update after Texas v. United States

8/12/21Conducting Country Conditions Research to Support Asylum, Withholding of Removal, and Convention Against Torture Claims

8/12/21Adjustment Exceptions that Feel Like Magic

8/17/21 2021 AILA Paralegals Virtual Conference

8/18/21-8/20/21CLINIC and NITA’s “Advocacy in Immigration Matters” Training

8/19/21 2021 AILA Asylum Virtual Conference

8/24/21All About Cuban Adjustment

8/27/21A Trauma-Informed, Anti-Racist Approach to Legal Advocacy

8/31/21Hot Topics in Marriage-Based Adjustment of Status

9/15/21Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part III: Getting Survivors & Their Families to the Finish Line

9/16/21Managing Immigration Compliance in a Remote and Hybrid Post-Pandemic World

9/23/21Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, August 2, 2021

Fall-out of Military Withdrawal for Afghan Interpreters

Immigration Law and Policy Conference virtual event (September 27-28, 2021)

ICE May Have Deported as Many as 70 US Citizens In the Last Five Years

Sunday, August 1, 2021

Processing delays leave unused slots, “wasted” green cards

From The Bookshelves: War on the Border by Jeff Guinn

Saturday, July 31, 2021

One More Week to Register for CSLSA WIP Conference

Senate Confirms New Director of Citizenship and Immigration Services

Friday, July 30, 2021

From The Bookshelves: (Re)Born in the USA by Roger Bennett

Attorney General Garland Warns Texas Governor About State COVID-19 Travel Ban

Thursday, July 29, 2021

White House Task Forces to Fight Corruption and Trafficking in Central America

Urban Institute: Three in 10 Adults in California Immigrant Families with Low Incomes Avoided Safety Net Programs in 2020

Japanese American swimmer Erica Sullivan wins silver, says she is “epitome of the American person”

US Gymnast Suni Lee at Olympics

From the Bookshelves: The Trespassers? Asian Americans and the Battle for Suburbia by Willow Lung-Amam

Biden Encountering Immigration Political Minefield

Wednesday, July 28, 2021

Immigration Court Cases Jump in June 2021; Delays Double This Year

Black Immigrants Denied Basic Necessities in ICE Detention Facilities

Your Playlist: Coco Tea

Immigration Article of the Day: Learning to Detain Asylum Seekers and the Growth of Mass Immigration Detention in the United States by Smita Ghosh and Mary Hoopes

From the Bookshelves: The Sympathizer by Viet Thanh Nguyen coming to HBO

Expedited Removal for Families is Back! DHS Statement on the Resumption of Expedited Removal for Certain Family Units

Tuesday, July 27, 2021

DACA Recipient Allowed to go to the Olympics

Immigration Article of the Day: Texas and the Dangers of State Immigration Enforcement by Geoffrey A. Hoffman

DACA Lawsuit Against Discover Bank Expands

Congressional fellowships on racial equity accepting applications

New Biden 21-Point Border Asylum Plan

From the Bookshelves: Front Desk trilogy by Kelly Yang

Attorney General Garland Deals 4th Blow To Trump Policy In Asylum Order

Monday, July 26, 2021

From the Bookshelves: The Downstairs Girl by Stacey Lee

Immigration Article of the Day: Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings by Emily Ryo and Ian Peacock

The UN Refugee Convention at 70 and Rights for Displaced People Today

The Olympics’ refugee team is a ‘symbol of hope’ in Tokyo.

Third Circuit Spanks IJ and BIA for Failure to Explain Denial of Relief to Ecuadoran Fearing Persecution

Let’s Call the “Border Crisis” What It Is: Another Big Lie From the Right

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

Thanks, Elizabeth!

Notable:

Immigration Court backlogs continue to mushroom as Garland to date has failed to take the aggressive measures needed and recommended to slash the docket by getting so-called “non-priority” cases off the docket (see, e.g., “Chen/Moskowitz proposal”) and bringing in more “progressive practical scholar judges” who know how to complete cases without compromising due process;
Biden’s announced support for “immigration legislation by reconciliation” might be the best shot for an Article I Immigration Court — is it an “idea whose time has finally come” as Judge Dana Leigh Marks, long-time Article I advocate, said recently;
Biden Administration mindlessly chooses to go to war with ACLU and human rights advocates on continued abuse of Title 42 to suspend asylum at the border (why not instead enlist these experts to restore a functioning asylum system at the border?);
ICE evidently has been deporting U.S. citizens, and not just “one or two;”
Circuits continue to “ding” BIA on basics like standard of proof, categorical approach;
Lucas Guttentag arrives on the scene @ DOJ not a moment too soon — but he’ll need lots of expert help on the inside to “right this sinking ship;”
Haste makes waste once again, as Gov. drags feet on returning 32 illegally removed children, spurring yet more unnecessary litigation (what about getting it right the first time around? — saves time and resources, also lives!);
https://lawprofessors.typepad.com/immigration/2021/07/lets-call-the-border-crisis-what-it-is-another-big-lie-from-the-right.html is also a “good read.” It seems pretty obvious, as many of us have been saying over and over, that having no legal system for screening and admitting refugees would add to the number of apprehensions and illegal entries — what other choice do desperate refugees have under the dysfunctional system maliciously created by Trump and mindlessly and illegally being maintained by Biden? Blaming the “victims” for our Government’s own intellectually dishonest, scofflaw, and immoral actions is a particularly cowardly thing to do! After nearly seven months in office (and over two months to prepare after the election) there is no excuse for the Biden Administration’s failure to have in place a fair and efficient asylum system, staffed by experts and better IJs who understand asylum and protection laws and are willing and well-qualified to grant relief to the deserving! Properly screening and establishing an orderly, fair adjudication system, with the assistance of NGOs and legal aid groups across the nation, would take pressure off of border communities. It would also allow qualified asylum seekers to become legal residents and begin fully contributing to our society and economy. Almost all experts, economists, and demographers say we need more legal immigration. Here it is staring us in the face; but, our Government wastes time and resources futilely trying to deter and expel folks who can help us out (while saving their own lives — a “win-win”)!

🇺🇸Due Process Forever!

PWS

08-05-212

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse? — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

Current Affairs | Permalink

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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

You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control.

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

⚖️🧑🏽‍⚖️🗽NBC NEWS: IMMIGRATION JUDGES KHAN, MARKS, HONEYMAN, & DORNELL SPEAK OUT ON STRESS, MESS, IN GARLAND’S BROKEN IMMIGRATION COURTS 🆘 🏴‍☠️ — Gabe Gutierrez Reports!

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan, President National Association of Immigration Judges (NAIJ)

Hon. Charles Honeyman — Honorable Charles Honeyman
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges

https://www.nbcnews.com/nightly-news/video/immigration-judges-speak-out-on-rise-in-u-s-border-crossings-114715205902

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

Judges Khan and Marks are already on the DOJ payroll. Garland should have brought them in to Falls Church, on at least a temporary basis, to start cleaning up the mess and instituting long overdue due process and judicial independence reforms! The NAIJ which they represent should have been reinstated to represent Immigration Judges.

FULL DISCLOSURE: I am a retired member of the NAIJ.

Recent retirees on the Round Table like Judges Honeyman and Dornell could have been rehired on a temporary basis under available authority to help root out and change the inane quotas, bad precedents, terrible exclusionary hiring processes, and mind-boggling “Aimless Docket Reshuffling” that continues to build backlog, deny due process, and promote reactionary White Nationalist policies in the failed and flailing Immigration “Courts.”

The continuing problems at Garland’s DOJ start with EOIR, but by no means end there! Apparently, Garland’s lackadaisical, permissive attitude toward corruption at DOJ under Trump & his cronies doesn’t get the Hill Dems’ attention unless they and their families were personally targeted by the illegality and misconduct. Otherwise, it’s just the lives of immigrants, asylum seekers, and “the others,” mostly people of color and abused women and children, so who cares?

It’s worthy of noting that it has largely fallen to the press and public interest groups to expose the corruption allowed to fester at Trump’s DOJ. Only then does Garland make tardy and half-hearted efforts to investigate or take action. Cleaning up corruption, changing bad and illegal policies, and rooting out those who carried out such abuses should have been “job one” for the incoming Attorney General. Instead, it’s an “afterthought,” at best!

And, of course, good government and ethics aren’t part of the “institutional culture” @ DOJ that Garland is so anxious to defend. Does every Administration have a “right” to have its illegal actions and corruption covered up and defended by its successor? Will it really deter “good government” if you believe that you might be held accountable by the next Administration for acts of unconstitutionality or illegality?

How come using the law as a “deterrent” is fine as applied to migrants of color, but “deterring” present and future DOJ bureaucrats and politicos from abusing the law in support of a corrupt Administration’s illegal policies isn’t?

Sure, I recognize that guys like Sessions and Barr have a perverted view of what’s unconstitutional. But, the object is to make it difficult for horrible opponents of American democracy like them to become Attorney General in the future and to insure that there will be institutional resistance to any future efforts to corrupt our justice system.

“Normalizing” the unprecedented overtly corrupt behavior of theTrump regime is a continuing problem! We need to fight it all levels of our society and government!

Dishonesty appears to be the main “bipartisan institutional value” at DOJ. No wonder it was so easy for Sessions and Barr to get their corrupt agendas carried out by career lawyers and bureaucrats!

Unless and until Congress finally lights a fire under Garland and his team, and creates an independent Article I Immigration Court, that’s unlikely to change.

Our DOJ is quite obviously broken and reeling. Why isn’t fixing it one of our highest national priorities?

🇺🇸Due Process Forever!

PWS

06-13-21

🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership! — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

EYORE — “Eyore In Distress” — Garland’s failure to set tone of due process, human rights, excellence, independence @ EOIR threatens U.S. Justice System — could led to downfall of American democracy!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html?action=click&module=Opinion&pgtype=Homepage

Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Immigration Courts Aren’t Real Courts. Time to Change That.

May 8, 2021

Image

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.

Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.

“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.

The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.

How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.

At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”

By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.

If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.

The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.

The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.

In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.

First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.

This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.

A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.

One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.

If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.

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

We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!

As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insulting stewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!

It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.

Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?

For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”

“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!

The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23” — a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”

Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!

As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!

Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.

In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!

As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.

Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!

Due Process Forever!

PWS

05-09-21

Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:

🇺🇸Due Process Forever!

Related posts:

The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech

MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE

By Judge (Ret.) Jeffrey S. Chase

March 25, 2024

NOTE: I am a proud retired member of the NAIJ.

🇺🇸 Due Process Forever!

Related posts:

Two items from the indomitable Dan Kowalski @ LexisNexis:

“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”

2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”

More “Unforced Errors” By Garland

🇺🇸 Due Process Forever

Related posts:

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

Bring in these experts:

🇺🇸 Due Process Forever!

Related posts:

Catch her here on this clip:

🇺🇸 Due Process Forever!

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From the Los Angeles & San Francisco Daily Journal:

🇺🇸 Due Process Forever!

Related posts:

Carrie La Seur reports for the Daily Montanan:

Without any immigration courts, Montana is tough for immigrants looking to build new life

🇺🇸 Due Process Forever!

Related posts:

Your friend & colleague, forever, ❤️

Related posts:

Scott Bixby reports for The Daily Beast:

🇺🇸Due Process Forever!

Related posts:

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Related posts:

Deepa Fernandes reports for the SF Chron:

Ah, Yes, What Timing!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

Related posts:

Notable:

🇺🇸Due Process Forever!

Related posts:

Dean Kevin Johnson reports for ImmigrationProf Blog:

Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

🇺🇸Due Process Forever!

Related posts:

FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸Due Process Forever!

Related posts:

Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Due Process Forever!

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