"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
WITH CHARACTERISTIC bombast, the White House denounced a federal court ruling the other day that threatens the administration’s policy of shifting migrants across the border into Mexico while they await the outcome of their asylum claims. The ruling, said press secretary Stephanie Grisham, could “reignite the humanitarian and security crisis at the border.”Too late, Ms. Grisham. As a direct result of the administration’s policy, known as Remain in Mexico, a full-blown humanitarian and security crisis already has been raging at the border since last spring. But since the victims, violence and costs of that crisis happen to be just south of the border — sometimes nearly within view of it — U.S. officials have successfully averted their eyes. To the Trump administration, a crisis of its own making is out of sight and therefore must not exist.
Sadly, it does exist. Some 60,000 migrants, mainly from Central America, have been returned by U.S. officials to Mexico over the past year to await adjudication of their asylum claims. Many have given up. Those who remain, stranded in squalid shelters and tent camps along the frontier, are easy prey for Mexican crime cartels. More than 1,000 reported cases of kidnapping, rape torture and other violent crimes targeting migrants waiting in Mexico have been documented by Human Rights First, an advocacy group. Independent journalists have also confirmed such cases, often involving Mexican criminals who use the migrants as leverage for ransom demands aimed at their relatives at home or in the United States.
The mass victimization of asylum seekers runs afoul of U.S. law and this country’s treaty obligations, which prohibit subjecting asylum seekers to such risks. “Uncontested evidence in the record establishes that [migrants returned to Mexico under the administration’s policy] risk substantial harm, even death, while they await adjudication of their applications for asylum,” wrote Judge William A. Fletcher of the U.S. Court of Appeals for the 9th Circuit, which ruled against the policy but let it stand pending further appeals.
. . . .
*********************************
Read the complete editorial at the above link.
It’s great to be on the right aside of history here. But, it would be better to make history by getting essential “regime change” in November – across the board.
Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)
*******************
Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!
Cristian Farias Writer in Residence Knight First Amendment Institute
Cristian Farias reports in The Atlantic:
For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.
Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.
It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”
Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.
In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.
Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.
The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)
. . . .
***********************
Read Cristian’s complete article at the above link.
”The truth will set you free.” But, at EOIR, the truth will get you fired!
Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.
Bailey’s Crossroads Pin
NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/
However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!
On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-. My take on the import of this decision seems to be different than most. Let me first provide some background.
Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short). Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture.CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.
To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border. Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive.But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution. It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.
The U.S. was one of 154 countries to sign the U.N. Convention Against Torture. However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1 The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum. It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.
In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-. At the time, the BIA was comprised of judges holding diverse views of the law. As a result, the Board was sharply split on the issue.The more restrictive reading won out, but 6 judges dissented.2 Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.
An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it. To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”
Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.” Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met.Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3
In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-. This time, the BIA did so in a three-judge panel decision in which there were no dissents. As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.
I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning. While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases in unpublished decisions where the outcome is generally known only to the parties involved.
A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand. The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.” In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action.One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.
The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week. Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation. But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).
Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-. The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease. The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice. Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.
Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference. However, these are different times.And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision. The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation.This is not how justice should be afforded to our country’s most vulnerable population.
Notes:
8 C.F.R. § 1208.18(a)(5).
I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.
Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Reprinted with permission.
********************************
Thanks, Jeffrey my friend,for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!
I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA.
It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge.
This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.
The Justice Department wants to dramatically increase fees for immigrants trying to fight deportation— including nearly $1,000 to appeal an immigration judge decision, according to a proposed Executive Office for Immigration Review rule.
Between the lines: It currently costs around $100 for immigrants to begin to legally fight deportation orders. If implemented, the new rule would raise fees to at least $305 and as much as $975, depending on the appeal.
By the numbers: In the rule, the administration argues that the discrepancy between fees collected and the processing costs “has become more of a burden on the immigration adjudication system as aliens overall have begun filing more of these fee-based forms and motions.”
They estimate that immigrants appealing deportation orders given by an immigration judge cost taxpayers $27.6 million in FY 2018. The rule proposes that fees be raised so that immigrants cover the total cost, which is how the $975 fee came about.
What they’re saying: When hearings are set two or three years in advance, immigrants have time to save for the fees. But with many new immigration judges and a rise in fast-track cases, that may no longer possible, immigration lawyer Jeffrey Chase, a former judge and senior legal advisor at the Board of Immigration Appeals, told Axios
Former immigration judge Paul Schmidt, who retired in 2016, told Axios in an email the proposed rule is “outrageous.”
He said correcting errors through the appeals process is one of the most important government functions. “That’s particularly true when the public segment ‘served’ is generally limited income individuals and getting results correct could be ‘life determining.’”
**************************
Here’s my complete commentary on EOIR’s latest shady maneuver:
In a single word, “outrageous.”
As set forth in the notice, EOIR is an “appropriated agency.” It was never supposed to recoup its costs, nor does it need to.
Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”
Applications, as opposed to “appeals,” also serve a critical public function in insuring that those who qualify under our laws to remain in the U.S. are permitted to do so. That’s a “winner” for everyone.
The astronomical proposed fee increase is particularly absurd in the current context. EOIR is actually cutting corners and has reduced the quality and accuracy of its work product. Why should the public pay nearly 10X more for a rapidly deteriorating product?
Moreover, given the “captive” nature of the courts and the illegal and unethical interference in their operations by the Attorney General and other political operatives at the DOJ, the only chance at fair and impartial “justice” for many individuals is to petition the Article III Courts. That requires going through EOIR, even when EOIR’s biased and unfair adjudication procedures make the results inevitable. It’s called “required exhaustion of administrative remedies.”
Sure, folks can continue to seek “fee waivers.” But, I’ll bet that the procedures for those will become more bureaucratic and unduly restrictive, and that many will be improperly denied. How does someone with no money appeal a wrongful denial of a fee waiver? He or she can’t. They are denied justice!
That gets us to the real point here. In an era and an area of the law where “access to justice” is everything, this is another blatant attempt by the White Nationalist regime to restrict access to justice. In real world terms, the claimed cost savings (and we should never accept the regime’s often flawed and manipulated calculations) here are peanuts compared with the human interests at stake. The regime wastes more than this every week on unneeded and unauthorized walls that blow down in the wind and overpriced golf security for Trump.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
***********************
For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
Kevin has already posted about Baby Jails, the new book from immprof Philip G. Schrag (Georgetown) that explores the detention of migrant children.
I write today as someone who recently devoured this book. Let me start by telling you two things about myself: I hate flying and I am not much of a fan of nonfiction books. Combining these two things, I tend to read a riveting YA novel while flying in an effort to distract myself from how many feet I am unnaturally suspended above the earth’s surface. Yet I recently read Schrag’s book over the course of 3 flights. It was utterly engrossing.
The book is jam-packed with law and yet manages to read like a narrative. You get a feel for characters (Jenny Flores, certain attorneys and judges) and find yourself rooting from the sidelines even as you know victories will frequently fail to live up to their promise.
The book included numerous vignettes and insights that were entirely new to me. For example, did you know Ed Asner was responsible for Flores’ legal representation? Yes, the grumpy old man from Pixar’s Up set out to help his housekeeper’s daughter who was housed with Flores and connected the young women with Peter Schey, founder of the National Center for Immigrants’ Rights (now the Center for Human Rights and Constitutional Law).
Here’s another one: Leon Fresco represented the government in a 2015 lawsuit brought by Schey to enforce the Flores settlement — arguing that the settlement didn’t apply to children traveling with parents and that the agreement was “no longer equitable.” Leon Fresco! I wrote about him a few years back — he was a key player in the failed 2013 comprehensive immigration reform led by the Gang of Eight.
I’m also impressed by how comprehensive the book is. I recently spoke to a friend who is on the cusp of publishing a book and we talked about how, at some point in the writing process, the publisher will charge by the word for additions of any kind. Yet Schrag’s book must have been edited and added upon right up until the last moment of publication. There is nothing of current import that is left behind (remain in Mexico, asylum cooperation agreements, third country transit).
This book is marvelous. A tour de force. I recommend it to everyone — even terrified flyers. Instead of gasping at every bump in the jet stream you’ll be scribbling away in the margins, furious at what our nation has done to children in the name of immigration enforcement.
-KitJ
*****************************
Thanks, Phil & KitJ, my friends and colleagues. Both of you are amazing inspirations to all of us in the “New Due Process Army.”
The Trump regime seeks to take child abuse many steps further to effectively “repeal by administrative fiat” all asylum protection laws, to insure that as many families and children as possible suffer, die. or are forced to remain in life-threatening conditions outside the U.S., and to abandon any effective cooperative efforts to improve conditions in “refugee sending” countries.
Meanwhile, many complicit Article III Judges (U.S. District Judge Dolly Gee being a notable exception) simply “look the other way” — not THIER kids and families being tortured and killed, so who cares what happens to them — and a depressing segment of the U.S. public just doesn’t care that the Trump regime is putting America among the most notable international human rights abusers. After all, THEY have jobs, THEIR kids aren’t the Trump regime’s targets (yet), and the stock market is going up. So, who cares what dehumanization, intentional human rights abuses, and violations of legal norms are taking place in their name?
Still, I think that Phil, Kit, the Round Table, and many other members of our “New Due Process Army” are clearly “on the right side of history” here. It’s just tragic that so many innocent folks, many of them children, will have to die or be irreparably harmed before America finally comes to its senses and restores morality and human values to our government.
We’ve got a chance to “right the ship” this November. Don’t blow it!
Due Process Forever; Government Child Abusers & Their Enablers Never!
Sent to Senator Mark Warner (D-VA), Senator Tim Kaine (D-VA), and Representative Don Beyer (D-VA) and a few others today:
Dear
RE: Independent Article I U.S. Immigration Court
As an American, human being, taxpayer, and retired career civil servant, I am outraged at the totally unconstitutional and maliciously incompetent destruction of due process and the rule of law, not to mention simple human decency, in our U.S. Immigration Courts by the Department of Justice and the Trump Administration. They have created unprecedented dysfunction and grotesque unfairness.
The current mess, with already record low and plummeting morale and an out of control, largely self-created backlog of more than 1.3 million cases, serves neither the human beings condemned to its daily injustices and intentional degradations of humanity nor the legitimate needs of DHS enforcement. The latter should not be confused with the many outright lies and intentionally false narratives about the need for massive, counterproductive, fiscally wasteful, and intentionally cruel immigration enforcement spread by this Administration. I call on you to join your colleagues in supporting bipartisan legislation to create an independent, Article I U.S. Immigration Court as one of our highest and most pressing national priorities.
I have been involved in the field of immigration, law enforcement, refugees, and human rights for 47 years. More than 35 of those years were spent at the U.S. Department of Justice, where I worked under both Republican and Democratic Administrations. Indeed, as a career Senior Executive under the Reagan Administration, I helped create the Executive Office for Immigration Review (“EOIR”) to house the Immigration Courts and the Board of Immigration Appeals (“BIA”).
Our aim then was to increase judicial independence, due process, fundamental fairness, and professionalism. The Department that I loyally served bears no resemblance whatsoever to the unbelievable ethical and legal morass that now exists under Bill Barr, one of the three most totally unmqualified individuals to hold that post during my lifetime (the others being convicted felon John Mitchell and notorious White Nationalist enforcement zealot Jeff Sessions, who was primarily responsible for the Administration’s cruel and unconstitutional “child separation” program).
Prior to my retirement on June 30, 2019, I spent 13 years as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia. Before that, I was a Board Member and Appellate Immigration Judge at the BIA, for eight years, the first six as BIA Chair. I also spent more than a decade at the “Legacy Immigration & Naturalization Service,” (“INS”) where as Deputy General Counsel, and Acting General Counsel during portions of the Carter and Reagan Administrations, I was responsible for the overall operation of the nationwide legal program, including all representation before the Immigration Courts and the BIA. I have also practiced immigration law as a partner at the D.C. Office of Jones Day and as managing partner of the D.C. Office of Fragomen.
I currently teach Immigration Law & Policy as an Adjunct Professor at Georgetown Law, as well as making numerous speeches and other public appearances, and publishing my own blog, immigrationcourtside.com. I am a proud member of the Round Table of Former Immigration Judges, a voluntary organization, with more than 40 former judges as members, committed to filing amicus briefs, public statements, and taking part in educational efforts intended to increase public and judicial understanding of the Immigration Courts and to promote an essential restoration of due process and fundamental fairness as its focus.
I know of few, if any, other participants in the current “immigration dialogue,” who have personally been involved in more cases either helping deserving individuals achieve legal status under our laws or, conversely, ordering the removal of individuals found not to qualify to remain here under our laws. In other words, I know what I’m talking about, much of it from face to face encounters with individuals on all sides of the issue in Immigration Court, as well as years of experience in shaping national immigration policy and legislation in both the public and private sectors.
I have had to personally deliver to individuals and their families the “bad news” that I was required by the law to return them to countries where I had little doubt that they would suffer torture, rape, dehumanization, or even death. It’s a sobering experience not shared by most of those clueless demagogues now bragging about how “success” should be measured by our ability to inflict more unnecessary cruelty and inhumanity on some of the most vulnerable individuals in the world and how “court efficiency” means nothing other than assembly line removals with neither due process nor fundamental fairness.
What’s happening now in our Immigration Courts is a travesty and a national catastrophe. It is wrong, from a Constitutional, legal, and moral standpoint. It eventually will join Jim Crow as one of the most heinous abuses of legal authority and human rights in modern American legal history. Surely, we all want to be on “the right side of history” on this fundamental issue.
Today, many NGOs involved in justice, immigration, and human rights launched a “twitter storm” to raise awareness of the tragic abuses of the legal system going on at the Administration’s instigation daily in our failed and unconscionably “weaponized” Immigration Courts. Innocent lives are literally being lost and families and futures ruined while we stand by and watch. America’s future as a great nation and “beacon of hope” for the rest of the world is literally being dissolved and washed down the drain.
Please take time to read the detailed letter that our Round Table of Former Immigration Judges signed, along with the American Immigration Lawyers Association and 53 other distinguished non-governmental organizations, demanding an end to the abusive Immigration Courts under DOJ control and the establishment of a constitutionally required independent Immigration Court that will insure due process and fundamental fairness as required by our Constitution.
Also, if you have not already done so, I urge you to read the letter signed by me and more than 2,500 other former DOJ officials deploring the corruption and unethical behavior that Bill Barr has “normalized” at the DOJ and demanding his resignation.
American justice is facing an existential crisis resulting from this Administration’s weaponization and maliciously incompetent management of what is perhaps our biggest, and certainly most important in terms of human lives and American’s future in the world, court systems: The Immigration Courts. When these courts finally implode under the Trump Administration’s continued abuses, they will take with them a large portion of our American justice system and that which makes America different from the rest of the world.
I should know – I dealt with the human wreckage caused by the failure of courts and justice systems in other countries nearly every working day for more than four decades. This Administration has turned our once-proud Immigration Courts into a “parody of justice” usually found in third-world dictatorships or authoritarian states where due process is but a mirage.
Therefore, I respectfully ask for your support in creating an independent Article I U.S. Immigration Court. Due Process Forever!
Today AILA, the American Immigration Council, and 52 additional organizations sent a letter to members of Congress, urging them to establish an independent immigration court! This letter was sent in advance of tomorrow’s twitterstorm that aims to bring attention to the dysfunction in the immigration court system and call for reform.
Twitter: You can retweet AILANational’s tweet or use some of the sample tweets below.
· Click to tweet: Case-completion quotas force immigration judges to rush through cases, often at the expense of due process. This assembly-line justice is unacceptable. Read the letter @AILANational & others sent to Congress calling for independent courts. http://ow.ly/mV3730qiMW5
· Click to tweet: The Trump administration’s certification decisions have undermined due process and weakened protections for asylum seekers. Read more in this letter @AILANational and over 50 orgs sent to Congress. #JudicialIndependence http://ow.ly/mV3730qiMW5
· Click to tweet: Due process and #JudicialIndependence should never be sacrificed in the name of political expediency. Read the letter @AILANational sent with over 50 other orgs calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
Sample LinkedIn/Facebook Post: Please share AILA’s Facebook post or use sample post below.
Due process and judicial independence should never be sacrificed in the name of political expediency. Read the letter AILA National sent with 50 other organizations calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
You can share tweets from our social media toolkit or craft your own using the hashtag #JudicialIndependence. Looking forward to seeing you on Twitter!
The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.
U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.
Republicans defend Barr as Klobuchar looks forward to testimony
Lawmakers and White House counselor Kellyanne Conway commented Feb. 16 on President Trump’s tweets and the conduct of Attorney General William P. Barr. (The Washington Post)
On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.
A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.
Rufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.
The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.
In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.
“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”
Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”
Trump keeps lashing out at judges
President Trump has a history of denouncing judges over rulings that have negatively affected him personally as well as his administration’s policies. (Drea Cornejo/The Washington Post)
Faced with more than 100 adverse rulings in the federal courts, Trump has continued verbal attacks on judges.
Rufe’s comments gave no hint of what the association could or would do in response.
Some individual judges have already spoken out critically about Trump’s attacks generally, among them U.S. District Judge Paul L. Friedman, a colleague of Jackson’s in Washington, and most recently, the chief judge of the court in Washington, Beryl A. Howell.
*******************
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Will Trump & Barr eventually separate Article III Judges’ families or send them to danger zones in Mexico or the Northern Triangle to “deter” rulings against the regime? Will Mark Morgan and Chad Wolf then declare “victory?” Will their families be scattered to various parts of the “New American Gulag” with no plans to reunite them? Will they be put on trial for their lives without access to lawyers? Are there costs for failing to take a “united stand” for the rule of law, Constitutional Due Process, human rights, and the human dignity of the most vulnerable among us?
Why does it take the case of a lifetime sleaze-ball like Roger Stone to get the “life-tenured ones” to “wake up” to the attacks on humanity and the rule of law going on under noses for the past three years?
WASHINGTON — More than 1,100 former federal prosecutors and Justice Department officials called on Attorney General William P. Barr on Sunday to step down after he intervened last week to lower the Justice Department’s sentencing recommendation for President Trump’s longtime friend Roger J. Stone Jr.
They also urged current government employees to report any signs of unethical behavior at the Justice Department to the agency’s inspector general and to Congress.
“Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice,” the former Justice Department lawyers, who came from across the political spectrum, wrote in an open letter on Sunday. Those actions, they said, “require Mr. Barr to resign.”
A Justice Department spokeswoman declined to comment.
After prosecutors on Monday recommended a prison sentence of up to nine years for Mr. Stone, who was convicted of obstructing a congressional inquiry, Mr. Trump lashed out at federal law enforcement. Senior officials at the department, including Mr. Barr, overrode the recommendation the next day with a more lenient one, immediately prompting accusations of political interference, and the four lawyers on the Stone case abruptly withdrew in protest.
The Justice Department said the case had not been discussed with anyone at the White House, but that Mr. Trump congratulated Mr. Barr on his decision did little to dispel the perception of political influence. And as the president widened his attacks on law enforcement, Mr. Barr publicly reproached the president, saying that Mr. Trump’s statements undermined him, as well the department.
“I cannot do my job here at the department with a constant background commentary that undercuts me,” Mr. Barr said during a televised interview on Thursday with ABC News.
In the days after the interview, Mr. Trump has been relatively muted. He said on Twitter that he had not asked Mr. Barr to “do anything in a criminal case.” As president, he added, he had “the legal right to do so” but had “so far chosen not to!”
But lawyers across the Justice Department continue to worry about political interference from the president despite public pushback by Mr. Barr, long considered a close ally of Mr. Trump’s.
Protect Democracy, a nonprofit legal group, gathered the signatures from Justice Department alumni and said it would collect more.
In May, Protect Democracy gathered signatures for a letter that said the Mueller report presented enough evidence to charge Mr. Trump with obstruction of justice were that an option. At the close of his investigation, the special counsel Robert S. Mueller III declined to indicate whether Mr. Trump illegally obstructed justice, citing a decades-old department opinion that a sitting president cannot be charged with a crime. That letter was also critical of Mr. Barr.
Even as the lawyers condemned Mr. Barr on Sunday, they said they welcomed his rebuke of Mr. Trump and his assertions that law enforcement must be independent of politics.
But Mr. Barr’s “actions in doing the president’s personal bidding unfortunately speak louder than his words,” they said.
The letter comes days after some Democratic senators pressed for Mr. Barr to resign, and after the New York City Bar Association said that it had formally reported the attorney general’s behavior to the Justice Department’s inspector general.
Strikingly, the lawyers called upon current department employees to be on the lookout for future abuses and to be willing to bring oversight to the department.
“Be prepared to report future abuses to the inspector general, the Office of Professional Responsibility, and Congress,” they wrote, and “to refuse to carry out directives that are inconsistent with their oaths of office.”
Prosecutors who currently work at the department should withdraw from cases that involve abuses or political interference, the lawyers said.
As a last resort, they asked Justice Department employees “to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation.”
Katie Benner covers the Justice Department. She was part of a team that won a Pulitzer Prize in 2018 for public service for reporting on workplace sexual harassment issues. @ktbenner
*****************************
Here’s the statement:
DOJ Alumni Statement on the Events Surrounding the Sentencing of Roger Stone
We, the undersigned, are alumni of the United States Department of Justice (DOJ) who have collectively served both Republican and Democratic administrations. Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice.
As former DOJ officials, we each proudly took an oath to support and defend our Constitution and faithfully execute the duties of our offices. The very first of these duties is to apply the law equally to all Americans. This obligation flows directly from the Constitution, and it is embedded in countless rules and laws governing the conduct of DOJ lawyers. The Justice Manual — the DOJ’s rulebook for its lawyers — states that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”
All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law.
And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle, most recently in connection with the sentencing of President Trump’s close associate, Roger Stone, who was convicted of serious crimes. The Department has a long-standing practice in which political appointees set broad policies that line prosecutors apply to individual cases. That practice exists to animate the constitutional principles regarding the even-handed application of the law. Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.
Such behavior is a grave threat to the fair administration of justice. In this nation, we are all equal before the law. A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President. Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.
We welcome Attorney General Barr’s belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics; that it is wrong for the President to interfere in specific enforcement matters, either to punish his opponents or to help his friends; and that the President’s public comments on DOJ matters have gravely damaged the Department’s credibility. But Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign. But because we have little expectation he will do so, it falls to the Department’s career officials to take appropriate action to uphold their oaths of office and defend nonpartisan, apolitical justice.
For these reasons, we support and commend the four career prosecutors who upheld their oaths and stood up for the Department’s independence by withdrawing from the Stone case and/or resigning from the Department. Our simple message to them is that we — and millions of other Americans — stand with them. And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation. We likewise call on the other branches of government to protect from retaliation those employees who uphold their oaths in the face of unlawful directives. The rule of law and the survival of our Republic demand nothing less.
If you are a former DOJ employee and would like to add your name below, click here. Protect Democracy will update this list daily with new signatories.
Dianne
LAST NAME
(Kelly) Sanford
HIGHEST DOJ TITLE
Assistant United States Attorney (D.C.); Assistant Section Chief, Environment and Natural Resources Division
# YEARS DOJ SERVICE
13
ADMINS SERVED UNDER
Bush I, Reagan, Carter
Stephanie
LAST NAME
(Lachman) Golden
HIGHEST DOJ TITLE
Trial Attorney
# YEARS DOJ SERVICE
10
ADMINS SERVED UNDER
Reagan, Carter, Ford
Jonathan
LAST NAME
Abernethy
HIGHEST DOJ TITLE
Assistant United States Attorney, SDNY
# YEARS DOJ SERVICE
7
ADMINS SERVED UNDER
Bush II
Elkan
LAST NAME
Abramowitz
HIGHEST DOJ TITLE
Chief of the Criminal Division, SDNY
# YEARS DOJ SERVICE
6
ADMINS SERVED UNDER
Carter, Ford, Nixon, Johnson
View larger version
Signatories have been vetted to the best of our ability.
********************************
It’s NOT Too Late! Let YOUR Voice Be Heard For Justice In America!
Arian Moayed ActorLee Sunday Evans Artistic Director WaterwellHon. Jeffrey S. Chase Jeffrey S. Chase BlogHon. Robert D. Weisel Retired U.S. Immigration Judge Member, Round Table of Retired Immigration JudgesHon. Elizabeth Lamb Retired U.S. Immigration Judge Member, Round Table of Retired Immigration JudgesElora Mukherjee “American Hero” Clinical Professor of Law & Director of the Immigrants’ Rights Clinic Columbia Law School
Here’s a recent anecdote from my good friend, colleague, and leader of our Round Table of Former Immigration Judges, Hon. Jeffrey S. Chase:
More theater news! On Monday, the director of The Courtroom emailed me in Rome to ask if I would perform at a special performance at the Lucille Lortel Theater in NYC on Wednesday night, in which three Tony winners were making guest appearances. Curtain was at 7 pm; our flight was scheduled to land at JFK at 4 pm. Just as we were about to board the flight, a delay was announced due to mechanical problems. We took off an hour and a half late, and were told we would be further slowed by strong headwinds. As I was worrying about making it in time, it occurred to me what a charmed life I am living in which worrying whether I will return from a 10-day vacation in Italy in time to act with three Tony Award winners constitutes a problem.
Landing at almost 6 pm, we cleared customs and jumped in a taxi; we arrived at the theater about 15 minutes into the play. I had emailed my daughter in NY asking her to bring one of her fiancé’s ties and a printed copy of my script (since we write out own remarks) to the theater. I performed my part; my wife and daughter each got to meet their theater idols; and my daughter and I attended the after-party in the West Village. I had been awake since 1 am NYC time, and got home at 11:30 pm.
At the party, I was talking with Arian Moayed (Stewy in “Succession” on HBO) and Kelli O’Hara (Tony Award winner who played the lead on Broadway in both South Pacific and The King and I). Kelli had played the IJ in Act I, and said that she had been in the audience at one of the very early performances, at which our group’s Betty Lamb had performed. Both Kelli and Arian said how powerful and impressive Betty’s performance had been!
I’m hoping others from this group get the opportunity to perform in the future. The Chicago IJs in our group probably know the real-life lawyer in the case, Richard Hanus, and you certainly know the real-life IJ, Craig Zerbe. The ICE attorney was Gregory Guckenberger. Do the last two realize they are being portrayed by actors of such caliber in a play that made the New York Times Best Theater of 2019 list?
Click on the link below to listen to the 37 minute podcast:
Waterwell Theater Company’s latest play, The Courtroom, has no playwright. Or even a theater. But as Waterwell founder (from HBO’s “Succession” and Tony nominee) Arian Moayed and Artistic Director Lee Sunday Evans tell Kevin, that’s the point. They found their inspiration — and their script — in the actual language of a deportation trial. And as immigrant rights advocate/attorney Elora Mukherjee reveals, they also found themselves pulled to ground zero of today’s drama: all the way to the border.
Resources
The Courtroom returns for monthly performances at civic venues in NYC through November 2020. For information and tickets visit https://waterwell.org/.
Jeffrey S. Chase, a former immigration judge, was the legal advisor for The Courtroom. Read his article “The Immigration Court: Issues and Solutions” here.
Follow guest Arian Moayed on Twitter at @arianmoayed.
Credits
The Backdrop is hosted by Kevin Bleyer and produced by Nella Vera.
Even before he was hired as Donald Trump’s attorney general, William Barr made it clear that he would be acting as the president’s lackey first and the chief lawyer for the United States second, having auditioned for the role by sending an unsolicited letter to the Justice Department calling the Russia inquiry “fatally misconceived” and describing Robert Mueller’s actions as “grossly irresponsible.” Since then, Barr has told Congress it’s perfectly okay for the president to instruct aides to lie to investigators, suggested that Mueller’s report fully exonerated Trump, which of course it did not, and attempted to bury the “urgent“ whistle-blower report that became the basis of the House’s impeachment proceedings.
Now, if it were up to Barr, he’d happily carry on doing the president’s dirty work, but for one problem: Trump, with his flapping yap and quick trigger finger, has been making it a little too obvious that the DOJ, in its current form, exists to punish his enemies and spare his friends. The most recent example of this, of course, came this week, when the president tweeted, at 1:48 a.m., that the sentencing recommendation of seven to nine years for his longtime pal Roger Stone was “horrible,” “very unfair,” and a “miscarriage of justice.” Then, after Barr’s DOJ intervened with a new filing calling for a much lighter sentence—which prompted the four prosecutors on the case to withdraw from it—the president tweeted his thanks, congratulating the attorney general on getting involved in matters relevant to his personal interests.
For many people long aware of Barr’s status as a boot-licking hack, this was a bridge too far. The calls for him to resign or be impeached were swift. And they got so bad that on Thursday, the attorney general felt compelled to sit down with ABC News and send the message to the president that if he’d like the DOJ to continue to do his dirty work, he needs to stop tweeting about it. Do criminals tell their social-media followers “Check out this sweet scam I just pulled”? No! Of course, rather than stating directly that the president’s penchant for telling the world about the many ways he’s corrupted the government have made it difficult for that corruption to continue, Barr had to pretend his comments were all about ensuring the DOJ’s independence, which would be a funny, not-at-all-believable thing for him to start caring about now.
“I’m not going to be bullied or influenced by anybody….whether it’s Congress, newspaper editorial boards, or the president,” Bill Barr tells @ABC News.
“I cannot do my job here at the department with a constant background commentary that undercuts me.”
“I’m not going to be bullied or influenced by anybody,” Barr insisted to ABC News chief justice correspondent Pierre Thomas. “Whether it’s Congress, a newspaper editorial board, or the president. I’m gonna do what I think is right. And you know…I cannot do my job here at the department with a constant background commentary that undercuts me.” Just in case that extremely obvious hint was lost on its intended audience, Barr added: “I think it’s time to stop the tweeting about Department of Justice criminal cases.”
Maybe it’s not the tweets damaging his integrity but the nakedly partisan and quasi-legal decisions he’s made on the tweeter’s behalf?Just a thought.
Asked about the decision to reverse the sentencing recommendation for Stone, Barr insisted that it definitely had nothing to do with the guy being a longtime friend of Trump’s, claiming that he came to the unbiased conclusion on his own that the seven-to-nine-years call was excessive and that he was planning to file an update even before Trump tweeted about it being “horrible and unfair.” (He was not asked about the NBC News report that he additionally removed a U.S. attorney from her post for failing to punish Trump’s enemy Andrew McCabe, or that the Justice Department also intervened to change the sentencing recommendation for convicted criminal and former national security adviser Michael Flynn.)
Barr said Trump’s middle-of-the-night tweet put him in a bad position. He insists he had already discussed with staff that the sentencing recommendation was too long. “Do you go forward with what you think is the right decision or do you pull back because of the tweet? And that just sort of illustrates how disruptive these tweets can be,” he said.
Barr also told ABC he was “a little surprised” that the entire Stone prosecution team had resigned from the case—and one from the DOJ entirely—which presumably has something to do with the fact that after using your department to do the president’s bidding for so long, you sometimes forget that other people will take issue with such behavior.
Asked if he expected Trump to react to his criticism of the tweets, Barr responded: “I hope he will react.”
“And respect it?” Thomas asked.
“Yes,” Barr said. You hear that, Mr. President? Let the man turn the judicial branch into your own personal score-settling operation in peace!
Even smart folks like The NY Times’David Leonhardt are babbling about, perhaps, giving Billy “the benefit of the doubt.” Come on, man!
As BessLevin points out, Barr’s faithfully been doing Trump’s “dirty work” for him since even before he set foot inside the DOJ again. It’s not like he’s suddenly had a “moral awakening” or discovered human decency.
No, Trump is the “unitary Executive” that Billy and some of his GOP righty neo-fascists have always salivated over. But, understandably he’d prefer more privacy as he deconstructs the DOJ and undermines fair and impartial justice, including, of course, further trashing the Immigration Courts that, incredible as it might seem in a country that actually has a written Constitution supposedly guaranteeing Due Process to “all persons,” belong exclusively to him.
Remarkably, and quite stunningly to anyone who has actually studied the law, the Article III Courts, all the way up to the feckless Supremes, have gone along with this absurd charade. You get the message: Immigrants, migrants, and asylum seekers aren’t really “persons” at all. They have been dehumanized by the regime and “Dred Scottified” by the Article IIIs.
There is no particular legal rationale or justification for this ongoing miscarriage of justice. It’s just a matter of enough folks in black robes being too cowardly or self-absorbed, or maybe in a few cases too ignorant, to stand up for the Constitutional and human rights of the most vulnerable among us.
To paraphrase an expression from the world of religion: “What would Jesus think about this blindness to human suffering?” Nothing good, I’m sure!
If he’s actually out there among us today, he’s undoubtedly among those suffering in the regime’s “New American Gulag” or waiting in squalor along the Mexican border for a “fixed hearing” that’s probably never going to happen anyway. I know where he isn’t: among the sign waving crazies shouting hateful slogans glorifying human rights abuses at the “hate fests” z/k/a “Trump rallies!”
In Immigration Court, the conflicts of interest and threats to human decency aren’t just “implied” or “apparent.” They are very real, and they are destroying real human lives, even killing innocent folks, every day.
And, unlike U.S. District Judge Amy Berman Jackson, whose life tenure allows her to “ignore the noise and do what she thinks is right” (as Trump’s GOP toadies love to point out), Immigration Judges are “wholly owned commodities” of Billy and the regime: disposable, subservient, and told to “follow orders.” They can’t even schedule their own cases without political interference, let alone apply the law in a way that conflicts with Billy’s unethical precedents or those entered by his “wholly owned appellate body,” the Board of Immigration Appeals!
The latter has recently gone out of its way to show total subservience to the regime’s White Nationalist anti-asylum, anti-due-process, anti-immigrant agenda. Indeed, they have even drawn the ire of at least one conservative GOP-appointed Article III Judge by contemptuously disobeying a direct court order in favor of a footnote in a letter from the Attorney General.
“Shocking” as this professional malpractice and contempt for the justice system might be to those journalists and former DOJ employees who haven’t been paying attention, it’s nothing new to those of us involved in immigration. For the last three years, the regime has been actively and unethically “gaming” the unconstitutional Immigration “Court” system against the very migrants and asylum seekers whose legal rights and human dignity they are actually supposed to be protecting!How is this “just OK?”
Feckless Article III Courts have largely “gone along to get along,” although they might be showing less patience now that the scofflaw actions and disrespectful attitudes promoted by Billy and his predecessor “Gonzo Apocalypto” Sessions are directed at them personally rather than just screwing vulnerable migrants and asylum seekers.
While it’s nice that at least some Article III Judges are finally reacting to being “given the finger” by Barr, Trump, and their gang of White Nationalist thugs, outrage at their own disrespectful treatment pales in comparison with the death, torture, rape, extortion, and the other parade of horribles being inflicted daily on vulnerable migrants by the Immigration “Courts” and the human rights criminals in the Trump regime while the Article IIIs fail to step in and save lives.
In the end of the day, as history will eventually show, human lives, which are the key to the “rule of law,” will prove to be more important than “hurt feelings” among the Article III “lifers” or the kind of legal gobbledygook (much of it on “jurisdiction” which often translates into “task avoidance”) that Article IIIs, particularly those from the right wing, like to throw around to obscure their legal tone-deafness and moral failings from their fellow humans.
Due Process Forever; Complicity in the Face of Tyranny Never!
Sen. Dick Durbin, D-Ill.(left), and Sen. Sheldon Whitehouse, D-R.I., Democratic members of the Senate Judiciary Committee, wrote a letter accusing the Trump administration of politicizing the immigration courts.
CREDIT J. SCOTT APPLEWHITE / AP
Top Senate Democrats warn that the Trump administration is deliberately undermining the independence of immigration courts.
In a bluntly-worded letter to the Justice Department, which oversees the immigration courts, the senators accuse the administration of waging an “ongoing campaign to erode the independence of immigration courts,” including changing court rules to allow more political influence over decisions, and promoting partisan judges to the Board of Immigration Appeals.
“The administration’s gross mismanagement of these courts,” they write, threatens to do “lasting damage to public confidence in the immigration court system.”
The letter was sent Thursday to Attorney General William Barr. It was signed by nine Democratic members of the Senate Judiciary Committee, including Sheldon Whitehouse of Rhode Island, Richard Durbin of Illinois, Mazie Hirono of Hawaii and Amy Klobuchar of Minnesota. They are requesting extensive information about the department’s hiring practices for trial-level and appellate judges, among other documents.
The Justice Department did not immediately respond to a request for comment on the letter.
The senators’ concerns echo those voiced by former and current immigration judges, including the head of the union representing those judges. Ashley Tabaddor, the president of the National Association of Immigration Judges, testified at a House Judiciary Committee hearing last month that immigration courts should no longer be overseen by the Justice Department.
“The only real and lasting solution is the establishment of an independent Immigration Court,” Tabaddor wrote in her testimony. “It must be free from the constantly changing (often diametrically opposed) politicized policy directives of the Department of Justice.”
Immigration courts face a massive backlog of more than a million cases. And there’s wide agreement that the court system needs reform. But not everyone believes that removing immigration courts from the Justice Department is the right approach.
“The attorney general and his subordinates are actively working to remedy this problem, by providing the needed resources to the immigration courts,” wrote Andrew Arthur, a former immigration judge who is now a fellow at the Center for Immigration Studies, in his testimony before the House Judiciary Committee last month. “Restructuring the immigration courts … will almost certainly not address the core problems that are facing those courts,” Arthur added.
At a time when caseloads are surging, some immigration judges are quitting, citing frustration and exhaustion. Judge Charles Honeyman retired from the Philadelphia Immigration Court in January after 24 years on the job.
“I would want future administrations and the Congress to think of immigration judges as judges, literally, and give them the autonomy and the independence and the confidence to make decisions without political interference or overreach,” he said in an interview with NPR’s Noel King.
“The only way to do that is to create an independent court where the judge makes a decision and the judge isn’t afraid of how many cases he has to complete for the year or whether some political actor is going to be looking over his shoulder and say, I don’t agree with that decision; we’re going to find a way to put pressure on you,” Honeyman said.
Copyright 2020 NPR. To see more, visit https://www.npr.org.
WABE brings you the local stories and national news that you value and trust. Please make a gift today.
Thanks, Charlie, my friend, for speaking out so forcefully for Due Process and justice in our Immigration Courts!
After seeing how Trump attacked an Article III life-tenured U.S. District Judge this week, does anyone seriously think that an Immigration Judge, a mere civil servant, who ruled against the Trump/Miller White Nationalist agenda in a case that came to Trump’s attention would retain their job under Billy Barr? After seeing how Trump treated some career civil servants and military officers after they “spoke truth to power” does anyone seriously think that Billy Barr of any other regime sycophant would defend fair and impartial decision making that Trump didn’t like?
No way! So how can ANY foreign national get a fair hearing before a “fake court system” where the prosecution authorities retain the right to change any result that goes against them and to remove subordinates who are supposed to be exercising independent judgement from their jobs if they don’t like the result.
The entire Immigraton Court system is and has been for some time now a cruel, unconstitutional hoax. Why haven’t the Article III Courts, whose judges are protected by life tenure, done their duty by stepping in and putting an end to this unconstitutional dysfunctional mess that is destroying innocent lives and ruining futures?
Many, many thanks to pro bono superheroes CHRISTOPHER T. CASAMASSIMA and SOUVIK SAHA and all of our other great friends over at WILMER CUTLER for once again “making us look smart!”
And here’s a summary of our argument excerpted from our brief:
INTRODUCTION AND ARGUMENT SUMMARY
Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.
1
Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.
2
A complete list of amici is included in this brief’s addendum.
Case 19-2284, Document 93, 02/11/2020, 2776030, Page13 of 55
Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.
Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).
Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:
-2-
Case 19-2284, Document 93, 02/11/2020, 2776030, Page14 of 55
First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.
Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.
Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.
Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for
-3-
Case 19-2284, Document 93, 02/11/2020, 2776030, Page15 of 55
individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.
Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.
Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.
****************************************
Once again it’s an amazing honor and privilege to join my wonderful sisters and brothers in our continuing team effort to restore and enhance Due Process in our U.S. Immigration Courts.
