THE GIBSON REPORT — 12-07-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including,January 1, 2020. NYC non-detained remains closed for hearings.

 

TOP NEWS

 

Judge Orders Government to Fully Reinstate DACA Program

NYT: Up to 300,000 additional undocumented immigrants could be allowed to apply for protection from deportation under a new court ruling. President Trump had sought to cancel the program.

 

Biden picks California Attorney General Xavier Becerra to be Secretary of Health and Human Services

ImmProf: As Attorney General, Becerra has filed 100 challenges to Trump administration policies, including many immigration and immigrant-related ones such as the rescission of the Deferred Action for Childhood Arrivals, efforts to defund sanctuary cities, addition of a U.S. citizenship question to Census 2020, and more.  Just last week Becerra won a challenge to President Trump’s public charge rule in the Ninth Circuit.

 

A Trump Immigration Policy Is Leaving Families Hungry

NYT: The “public charge” rule was supposed to ensure that green cards go only to self-sufficient immigrants, but in the pandemic, it is driving up hunger and leaving Joe Biden with a quandary.

 

Biden’s policies on immigration

WaPo: President-elect Joe Biden has pledged to make the United States a welcoming place for

immigrants, but his plans to dismantle the Trump administration’s barriers to immigration

could leave him in a quandary, especially as a new migration surge could be looming.

 

Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens

Scientific American: Some of the most solid evidence to date shows that President Trump’s cornerstone immigration policy was built on a wholly false premise.

 

LITIGATION/CASELAW/RULES/MEMOS

 

EOIR Issues Memo Consolidating and Updating Policy Regarding the Processing of Asylum Applications

EOIR issued a policy memo (PM 21-06) consolidating and replacing OPPM 00-01, Asylum Request Processing, and OPPM 13-02, The Asylum Clock. The memo concerns the processing of affirmative and defensive asylum applications, the asylum and EAD clocks, docketing and scheduling, BIA appeals, and more. AILA Doc. No. 20120702

 

EOIR Issues Guidance on “Enhanced Case Flow Processing” in Removal Proceedings

EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130

 

BIA Rules on Ineffective Assistance of Counsel

BIA ruled that counsel accepting responsibility of error does not discharge the disciplinary authority complaint obligation, and respondents seeking reopening based on ineffective counsel must show probability they would’ve prevailed otherwise. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) AILA Doc. No. 20120442

 

Full 4th Circ. To Revisit Nationwide Public Charge Block

Law360: The full Fourth Circuit will revisit a lower court order blocking the Trump administration’s immigration wealth test, months after a split panel allowed the federal government to enforce the so-called public charge rule while immigrants challenge it in court.

 

CA1 Finds Petitioner Abandoned LPR Status After Living and Working in Canada for Six Years

The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708

 

CA1 Upholds Denial of Asylum to Haitian Petitioner Who Provided Unsupported Theory of Attackers’ Motivation

Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20) AILA Doc. No. 20113034

 

CA2: Federal Court Affirms New York’s Green Light Law Allowing Undocumented Immigrants To Seek Driver’s Licenses

Gothamist: In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.

 

CA4 Finds BIA Abused Its Discretion in Denying Asylum to Former Colombian Police Officer

The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20) AILA Doc. No. 20120133

 

CA6 Upholds Matter of Castro-Tum and Says IJs Lack General Authority to Administratively Close Cases

The court found that the Attorney General correctly interpreted 8 CFR §§1003.10 and 1003.1(d) in Matter of Castro-Tum in holding that IJs do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (Hernandez-Serrano v. Barr, 11/24/20) AILA Doc. No. 20120134

 

CA7 Finds Petitioner Failed to Exhaust Administrative Remedies Where He Made No Argument About Criminal Violence in Mexico

The court dismissed in part the petitioner’s appeal of the denial of his cancellation of removal application, finding he had failed to exhaust his administrative remedies because he did not ask the BIA to address the subject of criminal violence in Mexico. (Barrados-Zarate v. Barr, 11/24/20) AILA Doc. No. 20120145

 

CA8 Upholds BIA’s Conclusion That Somali Government Would Not Acquiesce in Any Torture of Petitioner by Al-Shabaab

Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20) AILA Doc. No. 20120146

 

CA9 Upholds Limited Preliminary Injunctions of DHS Public Charge Rule

CA9 upheld preliminary injunctions issued against DHS’s public charge rule by district courts in California and Washington. In its order, however, the panel majority vacated the Washington court’s entry of a nationwide injunction. (City and County of San Francisco, et. al. v. USCIS 12/2/20) AILA Doc. No. 20120235

 

CA9 Declines to Rehear Vega-Anguiano v. Barr En Banc

The court issued an order amending its prior opinion and denying the rehearing en banc of Vega-Anguiano v. Barr, in which the court found a reinstatement order improper where the petitioner had shown a “gross miscarriage of justice.” (Vega-Anguiano v. Barr, 11/19/19, amended 11/24/20) AILA Doc. No. 20120147

 

CA9 Finds BIA Erred in Giving Reduced Weight to Testimony of Specialist in Gang Activity

The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20) AILA Doc. No. 20113035

 

CA9 Says Showing of Prejudice Is Not Required When Ineffective Assistance Leads to In Absentia Removal Order

Granting the petition for review and remanding, the court held that the BIA erred by treating the petitioners’ failure to show prejudice caused by alleged ineffective assistance of counsel as a basis for denying their motion to reopen removal proceedings. (Sanchez Rosales v. Barr, 11/18/20) AILA Doc. No. 20113036

 

CA11 Says INA §241(a)(5) Bars Reopening of Reinstated Removal Order Where Noncitizen Unlawfully Reentered After Removal

The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709

 

District Court Orders DHS to Fully Restore DACA Program

District court orders DHS to accept first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to 9/5/17 and that one-year deferred action and EADs must be extended to two years. (Batalla Vidal, et al., v. Wolf, et al., 12/4/20) AILA Doc. No. 20120701

 

Advance Copy of USCIS Notice of Extension of TPS Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

Advance copy of USCIS notice that DHS is automatically extending the validity of TPS-related documentation for beneficiaries under TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 10/4/21. The notice will be published in the Federal Register on 12/9/20. AILA Doc. No. 20120710

 

USCIS Issues Memo on Expanding Interviews to Refugee/Asylee Relative Petitions

USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented. AILA Doc. No. 20113041

 

DHS Issues Supplemental Policy Guidance on the Migrant Protection Protocols

DHS issued supplemental policy guidance on MPP, including on access to information about MPP, appeals, family units, mixed-nationality family units, UACs, known physical and mental health issues, use of restraints, interagency collaboration, and ongoing changes. AILA Doc. No. 20120712

 

CBP Says Program to Collect DNA Samples from Certain Individuals in Custody Will Reach Full Operation by End of 2020

CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody have provided the information it needs to implement nationwide collection. Per CBP, the collection program will reach full operation by December 31, 2020. AILA Doc. No. 20120433

 

RESOURCES

 

 

EVENTS

   

 

ImmProf

 

Monday, December 7, 2020

Sunday, December 6, 2020

Saturday, December 5, 2020

Friday, December 4, 2020

Thursday, December 3, 2020

Wednesday, December 2, 2020

Tuesday, December 1, 2020

Monday, November 30, 2020

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

Undoubtedly, the “malicious incompetents” in the regime’s immigration kakistocracy will intentionally leave a mess behind. I also recognize that construction is more difficult than destruction.

But, I don’t subscribe to the “mission impossible” tenor of the Post article above in Elizabeth’s report. Sure, the issues related to immigration are challenging. But, if Biden puts experts from the NDPA in charge they are very solvable, in months and years, not decades!

And, even if there were an immigration “surge” on the horizon, it hardly presents the “dire threat” to America’s security and prosperity that both parties have claimed it to be in the past. The “fiction of the great surge” overwhelming our nation has driven immigration policy of both parties for far too long with disastrous consequences!

In an article I recently posted, my friend and Round Table colleague retired U.S. Immigration Judge Paul Grussendorf, who also has been an Asylum Officer and worked with the UNHCR, cogently debunks the oft repeated myth of “surge theory:”

In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)

https://immigrationcourtside.com/2020/12/02/round-table-champion-%f0%9f%9b%a1%e2%9a%94%ef%b8%8fjudge-paul-grussendorf-speaks-out-from-personal-experiences-on-regimes-immigration-atrocities-%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%e2%9a%b0/

Hon. Paul Grussendorf
Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

Indeed, immigration is likely to be a key part of our economic, jobs, and societal recovery. To make that happen, however, we need to end the “Amateur Night at the Bijou” approach that has been take by Administrations over the past two decades, bring in the pros and experts from the NDPA, and empower them to solve problems in conjunction with the private sector, NGOs, industry, labor, and international groups. Figuring out how to create mutually beneficial opportunities from the reality of human migration, rather than treating it as a “threat” that can be eliminated unilaterally (it isn’t, and it can’t) is the way to future success.

It’s not “rocket science.” But it will require cleaning out the immigration kakistocracy at EOIR, DOJ, DHS, DOS, and across Government and replacing it with qualified, professional, experts from the NDPA and letting them solve the problems!

Due Process Forever!

 

PWS

12-08-20

 

 

 

🛡⚔️WITH ROUNDTABLE “FIGHTING KNIGHTESS” JUDGE SARAH BURR SPEARHEADING THE ATTACK, ICE SCOFFLAWS  🏴‍☠️ FORCED TO COMPLY WITH CONSTITUTION BY U.S. DISTRICT JUDGE! 👩‍⚖️ 

Hon. Sarah Burt
Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judgeship

Sir Jeffrey Chase reports:

Attached is the decision of U.S. District Judge Alison J. Nathan of the Southern District of New York ordering ICE to present detained noncitizens before an immigration judge within 10 days of their arrest.  It was not unusual as recently as early last year for noncitizens detained by ICE who were eligible for release to wait weeks or months to see an IJ for the first time.

Sarah Burr filed a declaration in support of the litigation that counsel acknowledged was critical to the outcome. Congrats, Sarah, and thanks for your extraordinary efforts on behalf of due process!

Whether as individuals or a group, we continue to make a difference in important decisions.

Best, Jeff

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

Thanks, and congrats, Sarah!

You are indeed one of the Round Table’s leading “warrior-princesses!”

Knightess
Knightess of the Round Table

Your fighting spirit and lifelong dedication to the battle to achieve “due process for all” are a constant inspiration to all of us in the Round Table and the NDPA!

Due Process Forever!

PWS

12-05-20

🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Me
Me

Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.

It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.

Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!

With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.

EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.

But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.

Read my complete speech here:

OHIO AILA

DUE PROCESS FOREVER!

PWS

12-04-20

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

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

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules.  Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded.  For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump.  In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment.  Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality.  They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea.  The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum.  Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious.  The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family).  These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection.  In publishing the final rule, the Departments did acknowledge these concerns raised in the comments.  However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required.  As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes?  Is that what you thought we said?  We meant they were similar to particularly serious crimes.  Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which  the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum.  The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law.  That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion.  The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection.  But thanks are also due to those who took the time and effort to submit comments.  Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions. 

Imagine all the positives for America that could be accomplished if  all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices —  judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

ROUND TABLE CHAMPION 🛡⚔️JUDGE PAUL GRUSSENDORF SPEAKS OUT FROM PERSONAL EXPERIENCES ON REGIME’S IMMIGRATION ATROCITIES, ☠️🤮⚰️ URGENT NEED FOR PRACTICAL HUMANITARIAN REFORMS — “The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court).”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Sessions in a cage
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license
Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Hon. Paul Grussendorf
Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

https://paulgrussendorf-19333.medium.com/trumps-asylum-immigration-policies-must-be-rolled-back-82de743ab175

Trump’s Asylum & Immigration Policies Must be Rolled Back

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Paul Grussendorf

6 days ago·17 min read

“Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the ‘white replacement’ or ‘white genocide’ theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.”

In 2016, after a legal career of 30 years in refugee and asylum protection, including eight years as a federal refugee officer and seven years as an immigration judge, I accepted a position in the Arlington, Virginia asylum office as a Supervisory Asylum Officer. I had tremendous respect for the U.S. asylum program and I knew from experience that most asylum officers choose the job as a humanitarian calling; their ranks include many attorneys and individuals with graduate degrees, with experience in the Peace Corps and other humanitarian backgrounds. And I can affirm that Asylum Officers have the hardest job of any immigration officers in USCIS-United States Citizenship and Immigration Services, due to the complex and ever-changing asylum law, and the nature of the intensive interviews.

The law enforcement side of our immigration system is exercised by ICE — Immigration and Customs Enforcement, a sub-agency of DHS that was created, along with Department of Homeland Security, in 2003 after the tragedy of 9/11. ICE officers are hired from a completely different profile of applicants and receive much less training in the humanitarian aspect of immigration law. The equivalent at the border is CBP — Customs and Border Protection.

The Netflix Series Immigrant Nation, airing in August 2020, exposes how, soon after Trump’s ascendancy to the presidency, he and his nativist cronies put into place a series of executive measures designed to practically eliminate refugee admissions; to curtail and eventually eliminate access to our asylum system; and even to severely reduce lawful migration to the United States. Virtually all of these executive measures are unlawful, in conflict with our nation’s immigration statute and in violation of our international treaty obligations, and even demonstrably harmful to the economic well-being of the U.S. They have all been challenged in court and practically every such executive measure has been deemed unlawful by federal district and appellate courts, yet the anti-immigrant juggernaut sails on. Recently the GAO — Government Accounting Office, an independent body, declared that, according to the Federal Vacancies Reform Act the current Acting Directors of both DHS, Chad Wolf, and USCIS, Ken Cuccinelli, were unlawfully appointed, and presumably every edict that they have issued since their appointments this past year will also be deemed unlawful.

One of the first ignoble acts of the administration’s new appointee to head U.S. Citizen and Immigration Services, Director Lee Cissna, was the removal of this truism from the agency’s mission statement: “America is a Nation of Immigrants.” Why would the head of the agency that receives all applications for visas, both temporary and permanent, and for asylum and refugee protection choose to redact such seemingly innocuous and self-evident verbiage from the agency’s mission statement?

In the same time frame the Department of Housing and Urban Development, headed by Trump’s appointee Ben Carson, removed the words “inclusion” and “free from discrimination” from its mission statement. We’ve seen in history how totalitarian regimes try to control the dialogue within their populace by changing and sanitizing language, including the use of language within federal institutions.

When this White House requested a study to map the net costs of refugees, conducted by the Department of Health and Human Services, and the results showed a net benefit to the economy over a period of ten years of $63 billion, the White House buried the study. https://www.nytimes.com/2017/09/18/us/politics/refugees-revenue-cost-report-trump.htm

Simultaneously the administration was implementing the so-called Muslim ban against citizens and residents of seven mostly-Muslim countries out of supposedly national security reasons. No one has ever explained why Saudi Arabia, the home of 15 of the 19 9/11 bombers, was not included in the list. (Saudi Arabia is also the home of the Al Qaeda sympathizer who shot up the Naval Air Station at Pensacola,Florida Air Base in December, 2019, killing three sailors and wounding eight.)

In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)

In the final months of 2016, I traveled with a group of asylum and refugee officers to San Salvador where we interviewed and vetted minors who were requesting refugee protection because of threats to themselves and their families by the ruthless MS-13 and 18th Street gangs. The children we spoke with or their parents had all received such threats as, “Either you work for us or you and your parents will be dead next week,” or “Give me your daughter or you have two days to leave the country.” And they all knew neighbors or close relatives who had died when such threats were ignored. We felt gratified knowing that we were granting these kids a lifeline of resettlement to the U.S.. I would only hope that any American father or mother, if ever faced with such a choice by a credible threat, would have the courage and means to flee across borders in order to protect their children, just as those parents joining the caravans with their children have chosen to do.

The new administration ordered a halt to such in-country interviews and even the resettlement of the cases we had already approved for travel. Its spokesmen have continuously and falsely characterized such asylum applicants as fraudsters who are gaming the system. The administration’s first morally challenged Attorney General, Jeff Sessions, claimed there was a conspiracy of corrupt attorneys who are manufacturing all of their stories. Believe me, they are not manufactured. All credible international reporters, including our own State Department, rebut the claim that such migrants are merely seeking jobs in the U.S. International reports affirm that some gangs in El Salvador are able to maintain such power and territorial control that they exercise the functioning equivalent of State authority, making it impossible for potential victims to resist their demands.

Sessions even admonished the assembled group of immigration judges at a conference, telling them they must not let their humanitarian impulses interfere with some fictitious mandate to deport as many applicants as possible. (Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the “white replacement” or “white genocide” theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.)

Jeff Sessions also chose to meddle in the administration of the immigration courts, in such a bungling manner that his mandated reforms achieved the opposite of his goal to reduce backlogs. By restricting the ways in which immigration judges can control their own docket, such as eliminating a judge’s ability to place a case on hold or “administratively close” a case while collateral legal action is ongoing in the migrant’s case, and by taking away ICE trial attorneys’ discretion to agree to grants of compelling cases, backlogs blossomed by the tens of thousands — within the two and a half years of this administration from approximately 500,000 to currently one and a half million.

The Netflix film crew obtained unprecedented access to ICE and CBP operations in the making of their series. I have trained asylum officers at the Federal Law Enforcement Training Center at Glencoe, Georgia, featured in the first episode of the Netflix series, and I have supervised asylum officers at the ICE family detention centers in Texas featured in the first episode. And I experienced, along with my colleagues, the devastating effects of the administration’s continuing attempts to deter refugees from coming to our southern border through abuse and cruelty, the so-called family separation policy. It is telling to see how many ICE and CBP officers and supervisors conceded, on camera, that the deterrence of ripping children from their parents’ arms upon arrival at the border is cruel and inhumane and un-American, but they felt compelled to follow the orders because “it’s the law.”

The so-called Zero Tolerance policy that was advanced by retired Marine General Kelly, first DHS Secretary and later White House Chief of Staff, and AG Sessions was a sham from the get-go. An impossible task, launched for public consumption and to create the impression that only by locking up all unlawful border crossers could any order be returned to the enforcement of our laws. The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court). In my career I observed how the U.S. Attorney’s Offices in Washington, D.C., and in San Diego, would, within their discretion, “no-paper” cases they considered too minor or insignificant to prosecute, saving their powder for bigger game. This was also the policy that the Obama Administration, under guidance of then DHS Secretary Janet Napolitano, established as ICE policy, when ICE agents and prosecuting attorneys were advised to let the low-hanging fruit go, such as hard-working but undocumented laborers, and concentrate instead on serious felons for apprehension and removal. The admitted consequences of this administration’s Zero Tolerance policy was to require all migrants be detained and prosecuted. Since children cannot be detained in an adult facility, they were to be separated from their parents, in order to achieve the maximum of trauma and pain upon the children and their parents. The trauma itself was to be a deterrent to future unlawful crossers, by “sending a message” not to come to the U.S. The notorious photos of kids in cages have tarnished our international reputation and provided talking points for terrorists.

Netflix film crews accompanied agents on raids in multiple locations, when the Zero Tolerance policy initially led to mass inland roundups. The cameras recorded agents blatantly lying to targets about who they are and their authority to enter private dwellings and arrest suspects without criminal arrest warrants, clear violations of the Fourth Amendment. We see numerous ICE veterans, and even FODs-Field Office Directors — lamenting the new ‘catch everyone’ policy, knowing from experience that such tactics are inhumane and bound to fail in the long run.

We see a gung-ho ICE public affairs officer trying to convince the Field Office Director of the Charlotte, North Carolina office to lie in a press briefing and indicate that 90% of the migrants detained in a community-wide sweep have criminal records; the FOD twice corrects him that the correct figure is 30–35%, meaning the remaining 70% are harmless field workers, hotel employees, construction workers or single mothers with U.S. citizen children.

Even though political appointees such as DHS Secretary Kirsjten Nielsen and AG Sessions were willing to blatantly lie to Congress about the motivation and consequences of such cruel policies, they were still tossed out by the president when the reality on the ground impaired their ability to achieve deportation numbers sufficient to satisfy the Nativist in Chief. Ultimately it took an even more barbaric policy, the Migrant Protection Protocol (MPP), another unlawful executive order, to force legitimate asylum seekers to remain on the Mexican side of the border while their cases were piling up in the bureaucracy. MPP is Orwellian double-speak, because the migrants, rather than being protected, are being sent into circumstances where they are easy prey for cartels targeting them and are notoriously subject to kidnappings, rapes, robberies and murders. No migrant being forced to wait for months in tents or temporary shelters along the border is safe.

Most disappointing to me as a Supervisory Asylum Officer was how management at the Arlington Asylum office, as soon as the MPP operating instructions came down in early 2019, was so willing to coerce asylum officers into violating their oaths to uphold the Constitution and the laws of the U.S. At an internal meeting with management and the asylum officers, supposedly to hash out the ground rules of this new MPP program, one of my officers complained that he felt both ethically and morally conflicted for the first time in his career, knowing that forcing asylum seekers to wait in Ciudad Juarez, one of the most dangerous cities in the world, was a violation of his oath and his training to offer protection to asylum seekers.

I wondered how our managers could justify to themselves the cruel and unlawful policies they were insisting that their subordinates carry out. Were they hoping that the federal courts would soon overturn the blatantly illegal policy and they would thus be off the hook? Were they thinking that at least they, as a federal officer with some limited power, were better than whoever might replace them if they were to resign? I’m sure that is how many attorneys and jurists, working within totalitarian regimes, justify their collaboration and acceptance of policies that are dehumanizing and deadly. When they were asked by their subordinates for justification they threw up a disingenuous wall of semantics, and when asked what procedures Customs and Border Protection were following in the context of MPP, they were told, “We believe CBP knows how to do their jobs.” Basically, just shut up and do what we tell you to do.

I was one of the first supervisors sent to oversee our officers conducting the new MPP screening interviews at the San Ysidro border crossing south of San Diego. Under the new guidelines the migrant must demonstrate to the asylum officer that it is “more likely than not” that they would meet serious harm if forced to wait for many months in Mexico until returning for an audience in front of an immigration judge, in order to be exempted from the requirement of waiting in Mexico. One of my very conscientious officers decided to refer for protection a young Guatemalan woman who had been held captive in an apartment in Tijuana by her domestic partner and brutalized and assaulted, and then viciously stalked when she fled from the dwelling. She should be allowed to remain in the U.S. pending her court date because it was clearly too dangerous for her to return to where her tormentor could easily locate her. I reviewed the interview notes and consulted with my officer and I agreed that it was a good case for protection. We informed CBP and our chain of command of the decision. The next day I received a call from the Deputy Director of the Arlington Asylum office., Jennifer Rellis. I was told that we had to be very careful with our assessments of the MPP cases because the “front office” had eyes on these cases. I was instructed to overturn our decision and to deny the young woman protection. And I was instructed that, going forward, any time I was inclined to approve any of my officers’ decisions to grant protection, I must first have one of my managers also review and sign off on it. There was no such requirement if we decided to deny protection to an applicant. Thus a presumption was created that we should deny protection in our MPP adjudications, a reversal of all of our training as asylum and refugee officers, and a blatant violation of our own statute and of U.N. refugee guidelines. In the following months this presumption against protection has continued to be enforced.

I wondered how Ms. Rellis could live with herself in so callously stripping me of my discretion to afford protection to legitimate refugees, given her training as a humanitarian lawyer. I’m sure if asked, she would argue we have no choice but to comply, and we can still protect asylum seekers within the limits of this new program. But there was no articulable reason why she would order me to enact an unlawful presumption of ‘not qualified’ where none exists in our asylum statute, regulation, case law, or international refugee law. The fact that such managers, whom we had always believed were motivated by their own humanitarian commitments, would so enthusiastically fall in line with a blatantly unlawful program caused great distress among the ranks of asylum officers. Many of my colleagues sought reassignment to other divisions within USCIS or even left the agency altogether. When I received that phone call I also began making arrangements to leave what had become a compromised agency.

Only months after I departed in June, the much-beloved Director of the Asylum Division was reassigned by the unlawfully appointed Acting USCIS Director Ken Cuccinelli to a management position in an uncontroversial department of USCIS. It was conceded that he had lamented to his asylum officers in an internal e-mail that it was unfortunate that the troops were being asked to adjust to these new policies with no forewarning or opportunity to adequately train.

It is remarkable that American Federation of Government Employees Union Local 1924, the union that represents asylum officers, has submitted “friend-of-the-court” briefs in numerous lawsuits against the administration’s attempts to implement the MPP program and otherwise curtail and dismantle the asylum program; and that Union Local 1924 President Michael Knowles has testified before Congress in opposition to such policies.

Jeff Session’s replacement AG William Barr has shown himself willing to continue the dismantling of our asylum program. He issued an edict that immigration judges would no longer have the discretion to grant bonds to asylum seekers in custody — clearly another attempt to discourage applicants from seeking shelter in the U.S. through the use of cruelty. This is an issue that is especially dear to my heart, as it has always been my principle that no asylum applicant should remain detained a day longer than necessary for routine administrative procedures. In fact, I testified before the Senate Judiciary Committee in 2013, at a time that comprehensive immigration reform was optimistically expected to be passed, in favor of granting immigration judges additional authority to issue bonds. My proposal wound up in the Senate’s draft legislation, which regretfully was never even taken up by the House. (In a meeting with Senator Marco Rubio’s immigration staffer I was assured that “the Senator is behind your proposals 100%.” During his subsequent presidential campaign in 2016 Rubio claimed he had never been in favor of comprehensive immigration reform). Again, several weeks after Barr’s edict against bond, a federal court blocked Barr’s draconian and heartless ban on conditional release from custody of asylum seekers from taking effect.

From the earliest campaign rallies in 2016, Trump has used fear and hatred of others to divide Americans and energize his base. The forefathers of most European Americans gained entry to the U.S. in exactly the same fashion as all those “illegal aliens” at our southern border; by showing up and asking for admission, at Ellis Island, at a time when there were no immigration controls in place other than routine screening for communicable diseases. Today the vast majority of Americans would not qualify for admission if measured against the standards this administration is trying to implement.

I was a refugee officer in the field at the time of the current President’s election. My colleagues and I were already conducting “extreme vetting” on Syrian, Iraqi, Somali, and numerous other populations, in conjunction with security resources of the CIA, FBI, Defense Intelligence Agency and Pentagon, years before this President decided to use fear as a means of control. My last assignment at the Refugee Affairs Division in 2015, before transferring to the asylum program, was to assist in the heightened vetting of all Syrian applicants at headquarters. Ironically, it is demonstrable that, on average, Syrian and Iraqi migrants to the U.S. are among the highest educated migrants in sciences and technology.

Refugee Admissions Decimated

During the last year of the Obama administration, in the context of the worst international refugee crisis since the end of the 2nd World War, the Obama administration asked that the Refugee Affairs Division increase refugee admissions from the already admirable number of 90,000 in fiscal year 2016 to 110,000 for 2017. However, on the heels of the Muslim ban came the new administration’s pronouncement that rather than 110,000, in fiscal year 2017 the program would be suspended for the rest of the year, thus grounding all refugee officers. . In 2018 the admissions was capped at 45,000 refugees, and it was determined that a ceiling of 30,000 admissions would be set for 2019. At a time when the U.S. should have been manning the bulwarks of refugee protection (Germany received a million refugees in 2015, comparable to the U.S. taking in 4 million) the U.S. effectively withdrew from the field, sending the signal that the U.S. no longer considers itself a leader in the world for refugee protection. A ceiling of 18,000 was set for fiscal year 2020, and this amount was only agreed to after push back from the Pentagon in reference to promises we had made to allies and interpreters working with our troops in the field in Irag, Afghanistan and Syria.

In 2018 Director Cissna also made the shocking announcement that USCIS would close all of its overseas offices, passing numerous tasks onto the State Department and domestic offices. The offices, established over a period of decades in such countries as Kenya, Ghana, South Africa, China, South Korea, Thailand, Mexico and Peru, primarily function as facilitators for family unity and refugee operations. Perhaps the first time that a federal bureaucracy has voluntarily given up turf, but in line with the administration’s seeming loathing for family unity.

The Myth of Skilled Migration

When then Chief of Staff General Kelly, formally DHS Secretary, disparagingly pronounced that most Central American migrants are “rural” migrants, as though of less value than presumably better educated “urban” migrants from white European countries, I took personal offense. My grandfather Grussendorf migrated with his family from a rural village in Lower Saxony, Germany at the end of the 19th Century at a time when there were no immigration controls at Ellis Island. He settled in the farming community of Grand Rapids, Minnesota, where he ran a farm and begat five children, one of whom became a high school math teacher; one became a state judge, one opened a nursery in Duluth, and one, my father, became a highly decorated Marine colonel, former company commander at the WWII landings at Saipan, Iwo Jima, and Okinawa. (I was born at Camp Pendleton). The state judge’s children included Cousin Benny Grussendorf who became Speaker of the House in the Alaskan Legislature. My father’s children included a Navy Captain and minister, a Navy enlisted man and transportation professional; a political activist, and an immigration judge. My brother the Navy Captain’s children include an Air Force flight surgeon and base hospital director; a veterinary, and a multi-lingual translator with her own business in France. All of these offspring were imbued with strong “rural” family values. That’s how migration works.

The idea of skilled-based migration, to be administered by a point system involving education, employment background, and language skills, isn’t all that bad in and of itself. Our close alleys Canada, the U.K., Australia and New Zealand all administer a version of this skills-based migration. The problem is the suggestion to eliminate family-based migration, when clearly the vast majority of our nation’s people, including the President’s own family, have benefited from it. The better idea is to double the current admissions level of permanent residents, half to be drawn from a skills-based system. It is the unnaturally low numbers of annual permanent resident admissions that is partly responsible for the log-jam of our immigration system, in today’s world where there is such an interest in immigration to the U.S., and given that our otherwise native-born population is in decline.

We must recognize that the recent surge at our southern border is not some kind of existential challenge to the nation’s existence, as seen in a vacuum, but rather only one component of the world-wide refugee crisis, a symptom of wars and world-wide insecurity. The long-term solution to any refugee crisis is always peace and prosperity in the country/region that is generating the refugees. Only peace and stability in Syria and northern Africa can allay the human waves of refugees into Europe. Only a Marshal-type program for the northern triangle countries, coupled with short term humanitarian protection for those fleeing eminent death, can resolve the crisis at our southern border.

And finally, regarding the present state of the U.S. Immigration Court system under this white nationalist administration, I’d like to quote my friend and colleague, Judge Paul Schmidt:

Once upon a time, there was a court system with a vision: Through teamwork and innovation, one of the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. (…)

Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

https://immigrationcourtside.com/ tag: Good Litigating in a Bad System

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Thanks, Paul my friend and colleague.

As Paul points out, beyond all of the regime’s racism, illegality, and immorality that has already been exposed in the media, the deep corruption, cowardice, and cruelty of those carrying out the program is simply stunning! It’s precisely how authoritarian, anti-democracy, illiberal regimes of the past like Nazi Germany, Soviet Russia, and Mao’s China operated. 

Inflicting “trauma for deterrence” on vulnerable humans is a “war crime” and a “crime against humanity,” plain and simple — regardless of the unlikelihood that regime’s many “perps” will be brought to justice within their lifetimes.

To those who doubt it, when the pandemic subsides, take a tour of the Holocaust Museum. The disgraceful conduct of the German judiciary and civil service is eerily similar to what Paul describes at DHS and EOIR.

We also must remember that despite being well-aware of the Trump/Miller racist-motivated immigration agenda, and the patent falseness of the legal and factual pretexts cooked up by the regime and its ethically challenged lawyers to provide “thin cover” for illegality and inhumanity, a Supremes’ majority improperly intervened to overrule lower Federal Courts and “greenlight” gratuitous cruelty and abuses of humanity! This process, known as “Dred Scottification” (“dehumanization of the other”) has carried over into the Supremes’ majority’s disgraceful  mistreatment of African Americans, Hispanic Americans, and other minorities in our society. It’s one of the key reasons why we have actually moved further away from racial equality and racial harmony in our society since the advent of the far-right judiciary.

Paul also exposes one of the biggest “shams” advanced by the racist right and their congressional supporters: That we must build an Immigration Court capable of deporting everyone in the U.S. without authorization. To state the obvious, this would be a practical impossibility, as well as an economic and social disaster — destabilizing industries and communities throughout the U.S., at a high cost, with no overall benefit.

It’s insane to charge the Immigration Courts with deporting everyone! That inevitably leads to mindlessly and exponentially increasing the number of judges without thinking about the training, support, technology, and wise policies necessary for them to operate successfully, fairly, and efficiently. Moreover, at some point, aimlessly increasing the number of judges without fixing the disgraceful deficiencies in the current system merely adds to the chaos, disorder, and the gross inconsistencies for which the system has become notorious. 

Obviously, the system must be fixed before a rational decision can be made on whether or not to expand it. Fixing the current system also lays the important groundwork for the necessary creation of an independent Article I Immigration Court.

No, the answer is to invest in fixing the current system to get it operating, as it originally was intended, as a high quality, modern, efficient court system that guarantees fairness and due process for all. 

With approximately 500 Immigration Judges already on board (not, of course, all the best qualified judges to carry out the mission — but that’s a problem for later), the reasonable annual capacity of the system is around 250,000 (500 judges x 500 cases/year) to 300,000. That means that more than one million of the current “deadwood” cases currently being warehoused on the EOIR docket by politicos at EOIR and DHS with no practical plan in place for ever completing them, must be removed and returned to DHS. 

That’s actually a job for a new, non-racist, professional DHS. But, given past spotty to downright contemptuous performance by DHS field officials, the Immigration Judges must be given strong authority to, where necessary, close and remove cases even in the face of DHS opposition. 

This means, of course, reversing “Gonzo Apocalypto” Sessions’s absurdly wrong decision in Castro-Tum. But, return to the prior status-quo is not enough! The BIA and the Immigration Judges must be empowered to take even more aggressive actions to close cases when necessary to do justice and to force the DHS to respect and comply with docket capacities. 

Then, as Paul suggests, like all other law enforcement agencies in the U.S., DHS enforcement must be required to develop strategies and prioritize cases in a manner that will not exceed the 250,000 per year capacity of the Immigration Courts. A large scale legalization program for those already here, a much more robust overseas asylum program, particularly in the Northern Triangle, and more “user friendly” legal programs to bring in needed workers, on either a temporary or permanent basis, would be great starting points to “rationalizing” the immigration system.

We thereby could end “Aimless Docket Reshuffling” as it has been practiced and expanded by DOJ & DHS politicos for the past two decades while taking the pressure off the Immigration Courts to do anything other than their only and only mission: through teamwork and best practices, guaranteeing fairness and due process for all who come before these courts. 

The key to making this happen: Immediate disempowerment of the deadly ongoing “Clown Show” 🤡☠️⚰️  in EOIR  “management” and at the BIA and replacing them with members of the NDPA: experts in asylum law, due process, practical scholarship, problem solving, and best practices. Then, and only then, will we see the restoration and progressive advancement of due process and humanity in the disgracefully broken U.S. Immigraton Courts. Without immediate EOIR reform, there can and will be no “equal justice for all” in the U.S. justice system! And, that’s bad news  for all of us! 

Due Process Forever!

PWS

12-02-20

JEFFREY S. CHASE BLOG:  In 1996, The BIA Was Functioning Like A Court & Trying To Develop & Apply Asylum Law In The Rational, Generous Way It Was Intended, Properly Giving The Applicant “The Benefit Of the Doubt” — Today,  The BIA Is A Deadly ☠️☠️⚰️ Clown Show 🤡 Asylum Denial Factory!

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Facts, Reason, and Benefit of the Doubt

On November 24, the U.S. Court of Appeals for the Second Circuit issued an unpublished decision in Malonda v. Barr.  In that case, the asylum-seeker was attacked by armed soldiers when they raided his family’s home in the Democratic Republic of Congo.  The soldiers raped and killed three of his sisters, and abducted his father and brother, all due to the father’s membership in an opposition political party.

The Immigration Judge acknowledged the voluminous documentation and detailed testimony in support of the claim.  However, asylum was denied because Malonda couldn’t identify the soldiers’ uniforms with absolute certainty, although he stated “they were working for the government, I can say.”  And because he did not credit the attackers as working for the government, the judge did not find that the attack was necessarily motivated by the family’s political opinion, but could have simply been an act of random violence not protected under asylum law.

Malonda was not the only recent agency decision to employ this thought pattern.  In the BIA’s precedent decision in Matter of O-F-A-S-, an applicant for protection under the Convention Against Torture testified that he was beaten, robbed, and threatened by five men wearing police uniforms bearing the insignia of a government law enforcement agency, who were armed with high-caliber weapons and handcuffs.  The Immigration Judge determined that the respondent had not met his burden of establishing that the five were police officers, as the uniforms could have been fake, and criminals also carry weapons.  The IJ further noted that the five did not arrive in an official police car, and immediately departed when they heard that a police car was en route in response to the disturbance.  Of course, real police officers engaging in extracurricular criminal activity would behave the same way.  Nevertheless, the BIA found no clear error on appeal.

In another recent decision presently pending at the Second Circuit, asylum was denied because the applicant was unable to state with certainty from the details of the uniform he wore that one of his persecutors was certainly a police officer, although he believed that he was.  The IJ therefore did not conclude that police were involved, instead considering the persecutors to be non-state actors, from whom the respondent hadn’t proven that the police were unwilling or unable to protect him.  The BIA affirmed in an unpublished decision.  Obviously, a finding that a police officer participated in the persecution of the asylum applicant could well have led to a different finding as to the government’s willingness to protect.

In each of the above cases, the respondent was found to be a credible witness.  There are only two types of witnesses in court proceedings: fact (or “lay”) witnesses and experts.  Asylum applicants are fact witnesses, describing what they experienced.  Although the Federal Rules of Evidence are not binding on immigration judges, they provide the best guidance available, as the Immigration Courts have no such evidentiary rules of their own.  Rule 701 of the FRE allows a lay witness to express an opinion provided that it is (1) rationally based on their own perception; (2) helpful to clearly understand the testimony or to determine a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge reserved for expert witnesses.  In the above cases, the asylum seekers’ opinions that the uniformed, armed attackers were government officials fit clearly within the parameters of Rule 701.

Of course, asylum applicants are not experts on uniforms worn by the various government forces in their home countries.  I doubt most country experts who testify in asylum cases would possess such specific expertise.  Even if they did, those experts weren’t present to witness the event in question to be able to affirm that the uniform was in fact the official government issue.  So what is the solution in cases in which the Immigration Judge harbors doubt regarding the attackers?

The UNHCR Handbook at para. 196 advises that despite all efforts, “there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”  The following paragraph adds that evidentiary requirements should not be applied too strictly to asylum seekers.  But the Handbook sets limits on this practice, adding that  “[a]llowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.”1

It would seem that requiring absolute confirmation of the authenticity of the attacker’s uniform (which psychologists have testified is not one’s focus during a traumatic experience) places an insurmountable burden on asylum applicants.  Given the purpose of asylum laws, where an asylum applicant expresses the reasonable opinion that attackers who look and behave like government officials are in fact government officials, in the absence of the type of inconsistencies flagged by the Handbook, the benefit of the doubt should be allowed to carry the day.

Addressing this issue in Malonda, the Second Circuit  focused on the fact that the identity issue was tied to the question of political opinion.  The court referenced its decision from earlier this year in Hernandez-Chacon v. Barr, in which it cited language from the BIA’s excellent 1996 decision in Matter of S-P- holding that  political opinion is established by direct or circumstantial evidence.

The Second Circuit pointed to circumstantial evidence in Malonda’s testimony that the attackers were government soldiers motivated by the family’s political opinion.  Such evidence included the facts that Malonda’s home was the only one attacked, and his father was the only resident of the street who was an active opposition party member.  Furthermore, the likelihood of the attackers being anti-government rebels was undermined by Malonda’s testimony that the rebels ability to reach his neighborhood was impeded by the presence of state security forces, and that his brother, who was abducted by the attackers, was brought to a camp where he was trained to fight against (rather than for) the rebels.

In a footnote, the court noted that the BIA had added its own insinuation to the contrary by referencing general reports of rebel involvement in “widespread violence and civil strife” in the country.  But the Second Circuit pointed out that such general information failed to consider that Malonda’s own region was protected by the government, and “more importantly, does not explain why the rebels would have targeted only Malonda’s house for such violence.”

The Second Circuit’s opinion in Malonda emphasizes the starkly different approaches of the 1996 BIA and its current iteration.  In Matter of S-P- (an en banc decision which remains binding precedent on immigration judges and the BIA), the Board noted the difficulty in determining motive where “harm may have been inflicted for reasons related to government intelligence gathering, for political views imputed to the applicant, or for some combination of these reasons.”  But the Board emphasized the importance of keeping “in mind the fundamental humanitarian concerns of asylum law,” which are “designed to afford a generous standard for protection in cases of doubt.”2

S-P- also included a reminder that a grant of asylum “is not a judgment about the country involved, but a judgment about the reasonableness of the applicant’s belief that persecution was based on a protected ground.”  As the scholar Deborah Anker has emphasized, such reasonableness determinations require “that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.”3  In its decision in Sotelo-Aquije v. Slattery, the Second Circuit similarly emphasized the importance of vantage point by describing the standard as what a reasonable person would find credible “based on what that person has experienced and witnessed.”

Applying this standard, what reasonable person who had experienced and witnessed what Malonda did would say: “You know, I was pretty certain the attackers were government soldiers punishing us for my father’s political activities.  But since you pointed out that I’m not completely certain about the uniforms, I guess I was mistaken.  It was probably just a random incident.  In which case, I can’t see any reason to fear return?”

Remarkably, that appears to have been the  BIA’s approach in Malonda.  Its decision lacked any indication of adopting the asylum applicant’s vantage point or applying the benefit of the doubt as described above.  And while Matter of S-P- set out a rather complex set of elements for identifying motive through the types of circumstantial evidence pointed to by the Second Circuit, the present BIA pointed instead to whatever generalized information it could find in the record to justify affirming the asylum denial.

Although an unpublished decision involving a pro se petitioner that could easily evade our attention,4 Malonda underscores the need for a uniform application of the principles emphasized in the BIA’s decision in Matter of S-P-, instead of a “uniform” approach based on the ability to identify uniforms.

Notes:

  1. Although not binding, the Supreme Court has recognized that “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform [and] has been widely considered useful in giving content to the obligations that the Protocol establishes.” INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n. 22 (1987). The BIA reached a similar conclusion in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (finding the Handbook to be a useful tool “in construing our obligations under the Protocol”).
  2. The majority opinion in Matter of S-P- was authored by now retired Board Member John Guendelsberger. Three current members of the Round Table of Immigration Judges, Paul W. Schmidt (the BIA Chairperson at the time), Lory D. Rosenberg, and Gustavo Villageliu, joined in Judge Guendelsberger’s opinion.
  3. Deborah E. Anker, Law of Asylum in the United States (2020 Edition) (Thomson Reuters) at 76.
  4. Thanks to attorney Raymond Fasano for bringing this decision to my notice.

Copyright 2020, Jeffrey S. Chase.  All rights reserved.

Reprinted With Permission.

 

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

Obviously, the BIA could resume court-like functions, provide scholarly, rational guidance and enforce uniformity for Immigration Judges (too many of whom lack true expertise in asylum laws), help cut backlogs, increase efficiency, and put an end to frivolous litigation by DHS which too often these days seeks to encourage IJs to deny cases where asylum grants clearly are warranted. (There was a time, at least in Arlington, when DHS Counsel actually worked cooperatively with the private bar and the Immigration Judges to promote fairness and use court time wisely on asylum cases. Those days are now long gone as the system has regressed horribly and disgracefully under the maliciously incompetent, White Nationalist, nativist, leadership of the current regime at DHS and DOJ).

But, due process, fundamental fairness, and best practices, can’t and won’t happen until the current “BIA Clown Court” 🤡 is replaced with a new group of expert Appellate Judges ⚖️👨🏻‍⚖️🧑🏽‍⚖️ from the NDPA who are “practical scholars” in immigration and human rights laws.

EOIR clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever!

PWS

11-30-20 

🗽⚖️🇺🇸YAEL SCHACHER @ REFUGEES INTERNATIONAL FILES AMICUS BRIEF ON WHY “REMAIN IN MEXICO” IS A “CRIME AGAINST HUMANITY” — “When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980.”

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.google.com/url?q=https://www.refugeesinternational.org/reports/2020/11/25/le4a9nihwqnhgcn0q2l5fufa8fah6v&source=gmail-imap&ust=1606928318000000&usg=AOvVaw0Fc_OTkc3MFgBm5dijso0i

. . . .

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing.  I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

. . . .

 

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

The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.

Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link.  Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!


Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.

The real problem here: A disgraceful Supremes’ majority 🏴‍☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem. 

Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment! 

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!  

It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!

Get mad!  Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️

Due Process Forever!

PWS

11-28-20

THANKSGIVING 🙏🏼 UPDATE ON ROUND TABLE 🛡⚔️ BATTLES FROM SIR JEFFREY! — Mostly Wins, One Disappointment!

Jeffrey S. Chase
Hon. “Sir”  Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

Hi all:  A few outcomes right before the holiday (two good, one bad):

(1) The Fourth Circuit just granted the motion for rehearing en banc in Portillo-Flores v. Barr, in which the Round Table filed an amicus brief.  This was a decision with a very problematic unwilling/unable determination by two judges (the petitioner, who was 14 when the events occurred, stated on the third time he was asked that it was possible the police might have taken some action), and a very strongly worded dissent.

(2) In a bond case in the Second Circuit in which we also filed an amicus brief in a case represented by Legal Aid., Arana v. Barr, the petitioner was released from custody today after having two prior requests denied.  Legal Aid believes our brief was helpful in achieving that result.  Counsel is expecting a stipulation for dismissal without prejudice.

(3) The bad news: in a petition to the 4th Circuit in support of CAIR Coalition involving Matter of A-B- issues, the 4th Cir. denied the petition for review, but did so in an unpublished decision.

Wishing everyone a very safe and happy Thanksgiving!

All my best, Jeff

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

Thanks, Sir Jeffrey!

I’m so thankful for all of the fantastic work that you and our other knightesses and knights of the Round Table do to keep due process and best practices on the forefront and spread truth in the face of tyranny, lies, and false narratives. While we often focus on the weekly amicus briefs we file with tribunals across the nation, the work also goes on in analysis, public speaking, media interviews, teaching, political involvement, video appearances, and grass roots pro bono and community work.

For example, our amazing colleague Judge Charlie Pazar of Tennessee just reported that he was featured on a CLE panel entirely devoted to the work and impact of our Round Table! Way to go Charlie! You are one of those who tirelessly works to improve American justice on all levels and you are certainly “super generous” in sharing your time, knowledge, expertise, and perspective!

Just recently, Sir Jeffrey, along with Round Table knightesses Judge Denise Slavin and Judge Sue Roy, in addition to yours truly and our friend NAIJ President Judge Ashley Tabaddor, were quoted by Suzanne Monyak in a Law360 article about the future of the NAIJ and the Immigration Court in a Biden Administration. Sadly, the article is “hidden behind the pay wall,” but those with access can read it in its entirety.  

Compare these unselfish, teamwork-oriented, effective, expert professional activities aimed at improving the justice system and access to it for everyone with the disgraceful, ignorant, divisive, counterproductive, and often downright racist and illegal actions of the current regime’s immigration kakistocracy, starting, but by no means ending, with the deadly ☠️⚰️🏴‍☠️ “EOIR Clown Show” 🤡!  

Think what a “Better EOIR” and a “better bureaucracy,” led by members of the NDPA could do to solve problems, promote the rule of law and best practices, and make “equal justice for all” a reality rather than a false promise that is intentionally never fulfilled! It isn’t rocket science. But, it does take replacing the kakistocracy, on all levels, throughout Government with experts from the NDPA committed to achieving “good government in the public interest.”

Due Process Forever!

PWS

11-27-20

CORRUPT, CHILD ABUSING, RACIST IMMIGRATION BUREAUCRACY 🏴‍☠️☠️🤮⚰️👎🏻 MUST BE REPLACED WITH PROFESSIONAL WORKFORCE COMMITTED TO DUE PROCESS, RULE OF LAW, HUMAN DIGNITY! — “CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic . . . .”

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Sheltering in Cages by John Darkow
“Sheltering in Cages” by John Darkow
Reproduced under license
Sessions in a cage
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

From WashPost:

https://www.washingtonpost.com/opinions/a-federal-judge-halts-another-inhumane-trump-administration-practice-at-the-border/2020/11/22/d5795686-2b4d-11eb-8fa2-06e7cbb145c0_story.html

Opinion by the Editorial Board

November 22 at 12:59 PM ET

CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.

A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.

At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.

Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.

As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.

Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.

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

Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including  the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!

We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash! 

Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!

We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.

The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.

The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!

And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our  “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges! 

It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future! 

Due Process Forever! Complicity in the face of tyranny, never!

PWS

11-23-20

COURTSIDE WINTER FASHION EDITION: See The Latest In Due Process & Racial Justice Sportswear Design By Our Award-Winning NDPA Fashion Team!

EOIR clown Show Must Go T-Shirt
“EOIR Clown Show Has Got To Go” T-Shirt Custom Design Concept

 

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

“A Brand New EOIR For A Better America!”⚖️🗽🇺🇸👨🏽‍⚖️👩‍⚖️👨🏻‍⚖️👍🏼😎

Due Process Forever!

PWS

11-22-20

 

🛡⚔️BATTLING THE KAKISTOCRACY: KNIGHTESSES & KNIGHTS OF THE ROUND TABLE, NDPA PRO BONO REGIMENT FROM SULLIVAN & CROMWELL CONTEST DEFEATED REGIME’S CONTINUING TYRANNY AT COURT! — Latest 9th Circuit Amicus Brief Highlights Due Process Requirements For Developing Record In Immigration Courts! — PLUS “SATURDAY BONUS” — Time For The NDPA To Stand Up & Demand A Primary Leadership Role In Reforming EOIR & The Totally Corrupt Immigration Bureaucracy! — “Just Say No” To “Same Old, Same Old” By The Characters Who Sowed The Seeds Of Past Failures & Opened The Door For Miller & Co! ☠️🏴‍☠️🤮⚰️👎🏻

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

Read the Round Table amicus brief here:

Brief of Amici Curiae Retired IJs and Former Members of the Board of Immigration Appeals

Highlight:

As this Court has recognized, “when [an] alien appears pro se, it is the IJ’s duty to ‘fully develop the record.’” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). Despite this long-recognized obligation, the record in this case demonstrates that this duty is not always fulfilled; and that the consequence may be unfairness and injustice to the pro se petitioner who is unable to develop the record without guidance and assistance. We respectfully submit that this Court should use this case to provide much-needed guidance to IJs on the scope of their duty to work with pro se respondents to elicit the information necessary to develop the factual record. Based upon our own extensive experience, we are of the view that this can be done efficiently and effectively by conscientious IJs, so long as the rule that they are required to do so is clear.

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

Thanks so much to out “Team of Pro Bono Heroes” at Sullivan & Cromwell, NY: 

  • Philip L. Graham, Jr.
  • Amanda Flug Davidoff
  • Rebecca S. Kadosh
  • Joseph M. Calder, Jr.

This regime has appointed mostly judges lacking experience representing individuals in Immigration Court and then compounded the problem with:

  • Mindless “haste makes waste” enforcement gimmicks (often supported by knowingly false or misleading narratives) imposed by political hacks at DOJ and Falls Church;
  • A BIA lacking expertise and objectivity that instead of focusing on due process for those in Immigration Court, spews forth “blueprints for denial and deportation” without regard for statutory, Constitutional, and human rights;
  • A system that has elevated “malicious incompetence” and “worst judicial practices” to a “dark art form.”☠️

TIME FOR COURAGEOUS NEW IMMIGRATION LEADERSHIP!

By Paul Wickham Schmidt

It’s time for the “EOIR Clown Show” in Falls Church to go! Bring in competent jurists and administrators from the NDPA: practical scholars and problem solvers with real life skills developed by saving lives from this broken and biased system. Real jurists with expertise in human rights and courage, who will make due process, fundamental fairness, humane values, and “best judicial practices” the only objectives of the Immigration Courts. Jurists who will courageously resist political interference and improper and unethical weaponization of the Immigration Courts by any Administration.

Let the incoming Biden-Administration know that you won’t accept failed “retreads” from the past and “go along to get along” bureaucrats running and comprising what is probably the most important and significant court system in America from an equal justice, social justice, constitutional development, and saving human lives standpoint. 

This is the “retail level” of our justice system: The  foundation upon which the rest of our legal system all the way up to a tone-deaf, flailing, failing, and generally spineless Supremes stands! This is a court system that the Biden Administration can fix without Mitch McConnell!

The members of the NDPA are the ones who have been fighting in the trenches (and at the borders) to save lives, advance social justice, insure equal justice for all, end institutional racism, and preserve our democracy in the face of a tyrannical, unscrupulous, corrupt, racially biased, anti-democracy regime and its enablers! Many have sacrificed careers, health, not to mention financial security in this fight!

Don’t let those who watched from the sidelines, above the day-to-day fray, or were part of the problem swoop in and take control after the battle has been won! 

Get mad! Get vocal! Get active! Call everyone you know in the incoming Administration! Demand that the NDPA and its members be given the leadership roles they have earned and deserve in remaking EOIR and reforming a thoroughly corrupt, politicized, and dysfunctional immigration bureaucracy across our Government! 

Don’t let the Dems turn their back on achievable reforms and “shut out” the reformers and problem solvers in the advocacy sector (who have “carried the water” for Dems for decades) as has been the case in the past! Don’t let the mistakes and short-sightedness of the past destroy YOUR chances for a better future!

Don’t let timidity, ignorance, indifference, and fear of “rocking the boat” in the name of justice, due process, and human dignity replace “malicious incompetence” in Government!

Due Process Forever! Same old, same old, never! It’s time for real change and reform! It’s YOUR time to shine! Let YOUR voices be heard!

PWS⚖️🗽🇺🇸👨🏽‍⚖️👩‍⚖️👨🏻‍⚖️

11-21-20

🇺🇸🗽⚖️BATTLING THE KAKISTOCRACY: Fearless Knightess 🛡⚔️Of The Round Table Judge Polly Webber Evicerates FLRA’S Corrupt Silencing Of Immigration Judges — “DOJ is trying to silence NAIJ from letting the world know that atrocities are at work behind the wall surrounding the Immigration Court!”

Polly Webber
Hon. Polly Webber
US Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
Fiber Artist
Knightess
Knightess of the Round Table

https://www.google.com/url?q=https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/polly-a-webber-muzzling-america-s-immigration-judges-is-a-travesty&source=gmail-imap&ust=1606421065000000&usg=AOvVaw3hYQvSKRmJ7U2inPKx49Sf

Polly A. Webber: Muzzling America’s Immigration Judges is a Travesty

Polly A. Webber, Nov. 19, 2020 – Muzzling America’s Immigration Judges is a Travesty

“It can’t be much of a surprise that I should have deep insight and strong feelings about the current state of our Immigration Courts, after more than forty years working in immigration law, twenty-one of them as an Immigration Judge appointed by Attorney General Janet Reno in 1995. Having retired in 2016, the issues I noted have become radically more pronounced and dire.

What do children in cages, refugee camps in Mexico, TV judges, lengthy delays and erratic scheduling have in common? They are all a part of the new look of the Trump Immigration Court, a shift in style and substance that is extraordinarily dismaying in many of its aspects. The Immigration Court is not an independent judicial tribunal. It is housed in a small agency within the Department of Justice (DOJ). Because of that placement, the Court has been plagued by a conflicted, dual identity, aspiring to be an independent tribunal while housed in law enforcement. It was only a matter of time before this politicized enforcement branch infected the Court.

Immigration Judges were recognized in 1979 as a collective bargaining unit called the National Association of Immigration Judges (NAIJ). Why did the judges feel a need to seek the protection of a labor organization? Quite simply, almost none of the people managing the huge bureaucracy of the Court actually spend any time in courtrooms. These high-level policy makers often have no practical knowledge of how the Court functions, and this defect has persisted through multiple political administrations. The DOJ issues policy and practice memoranda that bind judges without consulting them about their practical impact. Thus, a need arose for collective bargaining to assure input from the judges who implement these edicts.

On November 2nd, in an action by DOJ to decertify NAIJ, the Federal Labor Relations Authority (FLRA), remanded the action back to the Regional Director for a final decision, finding that Immigration Judges influence policy and are thus managers. That notion is laughable. Applying established law to a particular case is not influencing policy. Virtually every decision the judges make is subject to review and reversal by higher courts. Generally, judges are under the thumb of DOJ, ignored or ridiculed by leadership. It has gotten far worse for my colleagues after I left at the end of 2016.

. . . .

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

Read the rest of Polly’s article the link!

Given the grotesque level of malicious incompetence from DOJ and their EOIR toadies, it’s no wonder they want to suppress the truth about the ugly mess in the Immigration Courts. The Falls Church Clown Show 🤡 is coming to an end!

Due Process Forever!

PWS

11-20-20

🤮👎🏻EOIR’S CONTEMPT FOR CIRCUITS, UNPROFESSIONAL ABUSE OF EXPERTS, PRO-DHS BIAS EARNS STRONG REBUKE FROM 9TH! — End The Star Chambers!☠️ — No More “Governmental Malpractice” From The New Administration!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Kangaroos
BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/19-72745.pdf

Castillo v.Barr, 9rh Cir., 11-18-20, published

Summary by court staff:

Granting Juan Mauricio Castillo’s petition for review of the Board of Immigration Appeals’ denial of his application for protective status pursuant to the Convention Against Torture, and remanding, the panel held that the Board erred in giving reduced weight to the testimony of Dr. Thomas Boerman, a specialist in gang activity in Central America and governmental responses to gangs.

Castillo is a former gang member with tattoos who fears torture by gangs and/or Salvadoran officials because of his former gang memberships, his criminal conviction, and his later cooperation with law enforcement against La Mara Salvatrucha or MS-13. In a prior petition, the same panel concluded that the immigration judge and the Board improperly discounted Dr. Boerman’s testimony.

The panel addressed two initial matters. First, the panel stated that the Board’s rejection on remand of the panel’s prior interpretation of the immigration judge’s decision was ill-advised, explaining that its prior disposition was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. Second, the panel rejected the Board’s reliance on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its conclusion that Dr. Boerman’s testimony should be given reduced weight, because Vatyan addressed an IJ’s

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

   

CASTILLO V. BARR 3

discretion to weigh the “credibility and probative force” of an authenticated document, whereas the issue in this case involved the testimony of an expert that the agency had ostensibly concluded was fully credible.

Even assuming the agency could accord reduced weight to Dr. Boerman’s testimony and declaration, the panel disagreed with the Board’s new justifications. First, the panel rejected the Board’s reliance on alleged inconsistencies regarding Dr. Boerman’s familiarity with Castillo’s prison gang, where Dr. Boerman explicitly wrote in his declaration that his comments on Castillo’s prison gang were based on facts provided by Castillo, and the Board did not cite any reason to doubt Castillo’s testimony regarding rival gangs.

Second, the panel disagreed with the Board’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the Board failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert opinion, when his opinion had an independent factual basis.

Finally, the panel concluded that the Board’s decision to give Dr. Boerman’s opinion reduced weight, because it was not corroborated by other evidence in the record, was erroneous. The panel observed that the country report did provide support for Castillo’s claim, and it noted that Dr. Boerman’s expert testimony was itself evidence that could support Castillo’s claim.

The panel remanded to the Board, directing it to give full weight to Dr. Boerman’s testimony regarding the risk of

 

4 CASTILLO V. BARR

torture Castillo faces if removed to El Salvador. The panel explained that if the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. The panel further explained that once it gives full weight to Dr. Boerman’s testimony, the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.

***********

Essentially, EOIR has been unethically misusing their authority to harass Dr. Boerman and respondents’ advocates by systematically teaming up with ICE to devalue and defeat their efforts. Remarkably, this is even though Dr. Boerman and the advocacy community are “busting their tails” trying to help the system function properly and achieve justice! How screwed up, perverted, and cowardly is that?

Obviously justice and a functioning system have been antithetical to this regime and their toadies at DOJ and EOIR. With the degradation of the DOS Country Reports by political hacks, expert testimony has become essential in most asylum cases. Disgraceful performances by EOIR, as in this case, undermine the system and add to the backlog.

This case should have been completed in a single hearing. The BIA’s open contempt for the Circuits and failure to send strong signals to IJs (and the dilatory litigators at ICE) about issues that clearly should be resolved in the respondent’s favor is a mockery of justice!

Put the experts from the NDPA in charge of EOIR! Replace the BIA with real judges from the NDPA — asylum, human rights, and due process experts who will courageously stand up for the rule of law and hold both Immigration Judges and ICE accountable for scofflaw performances (and resist improper political interference from the DOJ — regardless of Administration). 

Judges who will re-establish judicial independence and stop flooding the Circuit Courts (and even the U.S. District Courts) with cases and issues that should be resolved in favor of respondents at the trial level, consistently and efficiently. That’s how to stop DHS’s and DOJ’s frivolous, unethical, anti-immigrant “litigation positions” in immigration matters that are bogging down our justice system at all levels.

That’s also how to cut, rather than astronomically increase, backlogs (along with drastic pruning of all the “deadwood” mindlessly and improperly piled onto the EOIR docket by Sessions, Barr, and an out of control ICE acting as an arm of “White Nationalist nation”). The backlogs can be reduced and eventually eliminated without stomping on anyone’s rights or adversely affecting “real” law enforcement — as opposed to the bogus (and fiscally irresponsible) version we have seen from DHS over the past four years.

Stop “churning” cases! Stop the “denial factory! Create a model, best judicial practices, due-process oriented court system of which we all can be proud! Grant asylum expeditiously and consistently to those who qualify for protection under Cardoza-Fonseca, Mogharrabi, Kasinga, and A-R-C-G- (after vacating the A-B- travesty and reissuing it as a precedent for clear grants in all similar cases)! Encourage the Asylum Offices to do likewise! Make “equal justice for all” part of the new Administration’s legacy! 

Think of what a great “teaching tool” that will be for future generations! I always treated my “courtroom as a classroom,” teaching law, history, practical problem solving, best interpretations, and best practices. I can’t think of a more powerful “real life” teaching and doing tool for improving the future of American justice — from the “retail level” of the Immigration Courts to the failing Supremes.

Due Process Forever! A weaponized and dysfunctional EOIR, never! 

It’s time for a sea change at EOIR. End the kakistocracy and the “malicious incompetence!” Time for action by the Biden Administration — not just hollow promises and more endless studies and discussions of what we already know and have known for years!

It’s not rocket science! The practical scholars and steadfast defenders of due process and democracy in the NDPA who can fix EOIR are out here and prepared to take over and hit the ground running for due process and fundamental fairness at EOIR! (Amazingly, those were once the goals and vision for EOIR, now trampled, degraded, mocked, and forgotten!)  Leaving them on the sidelines again would be “governmental malpractice!” And we’ve already had more than enough of that!

PWS

11-19-20

DESIGNED & STAFFED BY THE GRIM REAPER! ☠️⚰️— Star Chambers 🤮⚰️ Masquerading As “Courts” Are A Hotbed Of Institutionalized Racism, Cruelty, Bias, Bad Law, Worst Practices & A Refuge For Maliciously Incompetent Administrators 🤡 & Patently Unqualified “Judges”🤮  — All The Talent Has Been Exiled, Buried In The Field, Or Driven Out! — The Biden-Harris Presidency & The Future Of America As A Nation Of Laws  Depend On An Immediate Fix To This Grotesque Affront To Due Process, Fundamental Fairness, Human Dignity & Good Government Called “EOIR 🏴‍☠️!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Grim Reaper
Recent Barr Appointee Prepares to Take Bench
Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.google.com/url?q=https://www.justsecurity.org/73337/the-urgent-need-to-restore-independence-to-americas-politicized-immigration-courts/?utm_source%3DRecent%2520Postings%2520Alert%26utm_medium%3DEmail%26utm_campaign%3DRP%2520Daily&source=gmail-imap&ust=1605992548000000&usg=AOvVaw2Lv6qMLlyAHGvI3TEwjt62

Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:

The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.

In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.

Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.

The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.

The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.

Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.

Packing the Board of Immigration Appeals

The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.

The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.

The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.

A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.

Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)

. . . .

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

Read Gregory’s complete article at the link.

Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)

According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:  “In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”

Read about it from the Bay City News here: https://www.nbcbayarea.com/news/local/san-francisco/compliant-filed-against-sf-immigration-judge-accused-of-hostile-treatment/2399398/

With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!

Enough of the malicious incompetence, institutionalized racism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing  “crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.

The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA! 

There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!

This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!

Due Process Forever!

PWS

11-15-20

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

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

Asher Stockler reports for Law360:

. . . .

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

–Editing by Michael Watanabe.

 

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

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

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

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

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

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

You can read our complete amicus brief here:

19-897 bsac Immigration Judges

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

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

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

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

Well done, fearless fighters for due process!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

PWS

11-14-20

 

 

 

 

 

 

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