🤡SPOTLIGHTING CLOWN COURTS: HOUSE HOMES IN ON EOIR’S MALICIOUS INCOMPETENCE IN APPROPRIATIONS BILL REPORT! — “[T]ying an immigration judge’s performance to case completion threatens due process and affects judicial independence. Section 217 of the bill prohibits EOIR’s use of case completion quotas for immigration judge performance reviews.”

https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/July%209th%20report%20for%20circulation_0.pdf

The “EOIR Section” of the House Report follows:

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (INCLUDING TRANSFER OF FUNDS)

The Committee recommends $734,000,000 for the Executive Of- fice for Immigration Review (EOIR), of which $4,000,000 is from immigration examination fees. The recommendation is $61,034,000 above fiscal year 2020 and $148,872,000 below the request.

The recommendation includes $2,000,000 for EOIR’s portion of the development of the Unified Immigration Portal with the De- partment of Homeland Security (DHS) as well as increased funding for EOIR’s Information Technology (IT) modernization efforts, as requested. The recommendation also supports a level of funding that will allow for the continued hiring of immigration judges and teams. While the Committee recognizes EOIR has not requested any additional increase from its authorized position level from fis- cal year 2020, EOIR is currently well below this level and the Com-

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mittee is concerned that proposed funding increases are for posi- tions who will not be on board in fiscal year 2021.

Legal Orientation Program (LOP).—For the LOP and related ac- tivities the recommendation includes $25,000,000, of which $4,000,000 is for the Immigration Court Helpdesk (ICH) program. The LOP improves the efficiency of court proceedings, reduces court costs, and helps ensure fairness and due process. The Committee directs the Department to continue LOP without interruption, in- cluding all component parts, including the Legal Orientation Pro- gram for Custodians of Unaccompanied Children (LOPC) and the ICH. The Committee directs the Department to brief the Com- mittee no later than 15 days after enactment of this Act on how EOIR is effectively implementing these programs, including the execution of funds and any changes to the management of the pro- gram. The recommended funding will allow for the expansion of LOP and ICH to provide services to additional individuals in immi- gration court proceedings. The Committee supports access to LOP and ICHs and looks forward to receiving EOIR’s evaluation of ex- panding this program to all detention facilities and immigration courts, as directed in House Report 116–101. The Committee is deeply concerned that EOIR plans to use fiscal year 2020 funds for the procurement of a web-based application that is still under de- velopment, but did not actively discuss these changes with the Committee. While the Committee understands the coronavirus pan- demic has impacted court operations and novel approaches may be necessary for continuity, it appears a portion of these specific funds may not be fully executed in fiscal year 2020 in support of the pro- gram to pursue a new operating procedure without additional de- tails on how this will impact the LOP program in future years. The Committee is concerned that plans for a web-based application will not adhere to congressional intent to expand this program to new locations and individuals. The Committee reminds EOIR that fund- ing for this program, in its ongoing, in-person format, is mandated by law, and any diversion of these funds from their intended pur- pose must be formally communicated and convincingly justified to the Committee, consistent with section 505 of this Act.

LOP Pilot.—The Committee further directs EOIR, in coordina- tion with U.S. Customs and Border Protection (CBP), to pilot the expansion of LOP to at least one CBP processing facility with an added focus on expanding this program to family units. The Com- mittee further directs EOIR, in coordination with DHS, to assess the feasibility of expanding this pilot program nationally, and to re- port findings to the Committee no later than 180 days after the conclusion of the pilot.

Board of Immigration Appeals (BIA) Pro Bono Project.—The Committee recognizes the critical work of the BIA Pro Bono Project in facilitating pro bono legal representation for indigent, vulnerable respondents whose cases are before the Board. The Committee urges the continuation of participation of pro bono firms and non- government organizations (NGOs) in the BIA Pro Bono Project to directly facilitate case screening and legal representation. EOIR shall report annually to the Committee on the number of cases re- ferred to NGOs and pro bono legal representatives, the number of EOIR Form E 26 appeals filed against pro se respondents and filed by pro se respondents and make the information publicly available.

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Immigration case quotas.—The Committee remains concerned with the performance review standards that went into effect Octo- ber 1, 2018, which require immigration judges to complete a quota of 700 case completions per year to receive a satisfactory review. Although the Committee appreciates efforts to reduce the current backlog, tying an immigration judge’s performance to case comple- tion threatens due process and affects judicial independence. Sec- tion 217 of the bill prohibits EOIR’s use of case completion quotas for immigration judge performance reviews.

Judicial Independence and Case Management.—All courts re- quire judges to utilize case management tools in order to ensure ef- ficient use of the court’s time and resources. The Committee is con- cerned by recent Attorney General decisions that curtail the ability of immigration judges to utilize critical docket management tools, such as continuances and terminations, that enable efficient man- agement of the court’s dockets. The Committee supports the utiliza- tion of such tools to the fullest extent practicable and reaffirms its support for the authority of immigration judges to exercise inde- pendent judgment and discretion in their case decisions. Further, the Committee supports full and fair hearings for all who come be- fore the courts but remains concerned about decisions that ulti- mately keep asylum seekers, including those seeking relief from do- mestic violence, in detention for longer periods of time.

Video teleconferencing.—The Committee is frustrated by EOIR’s response to information requested in the Explanatory Statement accompanying the fiscal year 2020 Consolidated Appropriations Act regarding the publication of its policies for determining the use and dissemination of video teleconferencing (VTC) for individual merits hearings and tent court facilities. EOIR cites multiple policies on its website, but ultimately no central guidance on VTC appears to exist, outside of an interim policy document from 2004. The growth and dependence on VTC has developed since that time and it is concerning that EOIR does not have consistent rules governing the use of video teleconferencing, nor does it appear to have standards to ensure that the procedural and substantive due process of re- spondents in immigration court are protected. The Committee di- rects EOIR, within 90 days of enactment of this Act, to develop clear and consistent rules on the use of VTC hearings, including when the use of video teleconferencing is appropriate, and to de- velop rules for utilizing VTC hearings for particularly vulnerable groups such as unaccompanied minors, individuals with medical or mental health problems, and those subject to the Migrant Protec- tion Protocols (MPP) program. The Committee also directs EOIR to provide these newly developed policies to the Committee, and to make these policies publicly available.

Rocket Dockets.—The Committee is troubled by recent reports of changes in EOIR practices that expedite case processing and place unaccompanied children in so called ‘‘rocket dockets’’’ commencing their cases through VTC within days of their arrival in the United States. This practice is a shift from former precedent, and it lacks recognition that cases involving unaccompanied children are dif- ferent than detained adults. Immigration court proceedings must be tailored to the circumstances of individual cases in order to pre- serve due process and fundamental fairness, in particular for mi- nors. The Committee is equally troubled by reports that EOIR in-

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tends to expand this expedited case processing for cases involving unaccompanied children, with little knowledge about how this proc- ess impacts children, their opportunity to find counsel, or the chal- lenges with communicating with children of varying ages.

EOIR is directed to report to the Committee no later than 30 days after enactment of this Act on the number of cases involving unaccompanied children that had a Master Calendar hearing scheduled within 30 days of their Notice to Appear (NTA), the loca- tion of these cases, including whether VTC was utilized for the hearing, whether the child had counsel, and the outcome of the pro- ceedings. Further, the Committee notes that EOIR has not commu- nicated with the Committee on this change in practice and is con- cerned that EOIR is piloting and expanding a new program that has not been explicitly authorized by Congress.

Tent Court Proceedings.—The Committee is concerned that the creation of new immigration hearing facilities, often referred to as ‘‘tent courts’’’, along the border, where judges appear via video tele- conferencing (VTC). The Committee is concerned that these new fa- cilities threaten the public nature of immigration court pro- ceedings. The Committee directs EOIR to provide a report within 60 days of the enactment of this Act that provides details on EOIR’s involvement in the creation and operation of such immigra- tion hearing facilities, as well as information detailing how EOIR schedules judges for hearings and a list of judges hearing cases in these facilities. EOIR shall also post to its website information on attorney access at those facilities, as well as policies regarding pub- lic and media access.

Migrant Protection Protocol (MPP) Statistics Publication.—With- in 60 days of enactment of this Act, and quarterly thereafter, EOIR is directed to publish on its public website: (1) the number of MPP Notices to Appear (NTA) received and completed, (2) the number of continuances or adjournments in non-MPP cases due to an immi- gration judge being reassigned to hear MPP cases, (3) the number of MPP hearings that occurred via VTC, and (4) the number of im- migration judges assigned to hear MPP cases. EOIR is also di- rected to publish the number of MPP hearings delayed as a result of the coronavirus pandemic, as well as the average length of delay. EOIR is further directed to publish all workload-related data cur- rently included on its Workload and Adjudication Statistics website page in separate MPP and non-MPP formats.

EOIR is also directed to develop a plan to begin tracking the ap- pearance rate of individuals placed into removal proceedings, bro- ken out into MPP and non-MPP cases, calculated by determining the percent of individuals who have attended all scheduled hear- ings in any given quarter, regardless of whether the hearing re- sulted in a completion. The Committee directs EOIR to report on its plans no later than 180 days after enactment of this Act.

Interpreters.—The recommendation includes the requested fund- ing increase for interpretation services. While the Committee recog- nizes that increasing numbers of respondents in immigration courts require the use of interpretation and the ballooning costs as- sociated with these interpretation services, the Committee directs EOIR to pursue cost efficient measures to ensure appropriate lan- guage access for all respondents, including indigenous language speakers, and further directs EOIR to submit a report to the Com-

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mittee, no later than 90 days after enactment of this Act, outlining steps taken to reduce costs. The Committee eagerly awaits EOIR’s quarterly reports highlighting any continuances or adjournments for reasons related to interpretation as well as EOIR’s joint report with DHS on shared interpretation resources as directed in House Report 116–101.

Legal Representation.—The Committee is concerned with the low rate of representation in immigration court, and the recommenda- tion provides $15,000,000 in State and Local Law Enforcement As- sistance for competitive grants to qualified non-profit organizations for a pilot program to increase representation.

Immigration judges.—The Committee directs EOIR to continue to hire the most qualified immigration judges and BIA members from a diverse pool of candidates to ensure the adjudication process is impartial and consistent with due process. The Committee is dis- turbed by recent reports of politicized hiring processes for immigra- tion judges. The Committee directs EOIR to continue to submit monthly reports on performance and immigration judge hiring as directed in the fiscal year 2020 Explanatory Statement and is di- rected to include additional information on the status of hiring other positions that make up the immigration judge teams such as attorneys and paralegals. Finally, the Committee is concerned about a recent Department of Justice petition sent to the Federal Labor Relations Authority requesting the decertification of the Na- tional Association of Immigration Judges. The Committee recog- nizes the importance of our nation’s immigration judges and their ability to unionize.

Immigration Efficiency.—EOIR is encouraged to collaborate with the Department of Homeland Security (DHS) to explore efficiencies with regard to the co-location of DHS and DOJ components with immigration related responsibilities, including immigration courts, DHS asylum officers, medical care practitioners, and both CBP and Immigration and Customs Enforcement (ICE) immigration officers.

Alternatives to Detention (ATD) Program.—The Committee is concerned that many individuals enrolled in ICE’s ATD program will be terminated from the program before their cases are fully re- solved. Getting timely resolution of these cases is complicated by the historic volume of pending cases on EOIR’s non-detained docket schedule. The Committee recognizes the ATD program is managed by ICE, and that EOIR currently lacks information about who is enrolled. However, the Committee also recognizes that the longer an individual remains on ATD while their case is pending before EOIR, the more expensive the ATD program is per enrollee, and the less effective the ATD program is. Prioritizing ATD enrollees’ cases as if they were on the detained docket could potentially in- crease the effectiveness of the program, lower the cost per enrollee, and support more individuals in the program overall. The Com- mittee directs EOIR, in coordination with ICE, to develop an anal- ysis of alternatives to improve the timeliness of resolving cases be- fore EOIR for individuals in the ATD program, and further to con- sider as one such alternative the classification of ATD enrollees as part of the detained docket for purposes of case prioritization. EOIR is directed to brief the Committee on their findings not later than 180 days after the date of enactment of this Act.

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Court Operations during COVID–19.—The Committee under- stands that the novel coronavirus pandemic has forced the majority of Federal Government agencies to alter their normal operating procedures, and changes to court operations is no exception. How- ever, the Committee is frustrated that EOIR relied largely on Twit- ter to communicate its operational status. Many that were travel- ling, especially from Mexico, to appear at immigration court hear- ings, did not receive the updated information that the courts were closed. Even prior to the pandemic, the Committee was troubled by reports concerning the timeliness and receipt of hearing notices, as some were undeliverable as addressed and thus returned to immi- gration courts, and attempts to change addresses with the immi- gration court were often unsuccessful due to current backlogs. As of March 31, 2020, in absentia removal orders were already on the precipice of reaching the total number for all of fiscal year 2019. The Committee is concerned that the pandemic has exacerbated an already confusing process, resulting in an exponential increase in the number of removal orders for respondents who simply did not have the information to appear in court. Therefore, the Committee directs EOIR to submit a report to the Committee, within 90 days of enactment of this Act, that details the specific steps EOIR has taken since March 2020 to accommodate respondents who have missed court appearances due to COVID–19, and steps EOIR has taken to ensure respondents have a centralized mechanism to elec- tronically file an EOIR Form–33 in order to change their address remotely with EOIR, in addition to the current use of paper filings.

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

Report language from un-enacted appropriations bills doesn’t have any legal effect. But, it does show that at least on the Democratic side, legislators are beginning to penetrate the various smoke screens that DOJ and EOIR management have used to disguise their gross mismanagement and attacks on due process and to deflect blame to the victims: primarily respondents, their attorneys including pro bono groups, and in many cases their own judges and court staff. It also shows that contrary to DOJ/EOIR propaganda, pro bono programs and Legal Orientation Programs play an essential role in due process.

Let’s be very clear. This “fix-it list” will be ignored by the scofflaw kakistocracy firmly committed to a program of unfairness to migrants, hostility to pro bono organizations, worst practices, demeaning their own employees, not serving the public, and returning asylum seekers to mayhem, torture, and death without due process. However, it is a useful “to do” list for those future judicial leaders and administrators committed to judicial independence and restoring and improving due process and fundamental fairness for all in our Immigration Courts.

Hopefully, in the future, with some needed regime change this will result in an independent Article I Immigration Court replacing the unmitigated legal and management mess that has become EOIR under DOJ control.

Due Process Forever! Clown Courts Never!

PWS

07-14-20

🏴‍☠️☠️⚰️🤮👎KAKISTOCRACY KORNER: Trump’s Malicious Incompetence Bankrupts Once-Profitable Immigration Agency — The Solution Is NOT More Public Assistance For The Regime’s Freeloaders!

https://www.washingtonpost.com/opinions/trump-brings-atlantic-city-style-bankruptcy-to-americas-immigration-agency/2020/07/03/a4619ff8-bc04-11ea-bdaf-a129f921026f_story.html

From the WashPost Editorial Board:

By Editorial Board

July 4 at 8:30 AM ET

AS A business mogul in Atlantic City, Donald Trump ran casinos that teetered continually toward bankruptcy, costing gullible investors well over $1 billion. Now President Trump’s policies have bankrupted the federal government’s main agency overseeing legal immigration, U.S. Citizenship and Immigration Services, which is on the brink of imposing furloughs on thousands of its employees and is begging Congress for a bailout.

USCIS, which handles green cards for permanent legal residents, manages citizenship procedures and vets visa applicants, depends for its operating revenue almost entirely on fees from “customers,” meaning immigrants. The business model Mr. Trump’s administration devised for USCIS was a recipe for financial ruin: deplete income by driving away fee-paying applicants and pile up expenses by hiring thousands of new employees. Little wonder that after three-and-a-half years, USCIS has gone hat in hand to Congress, pleading for $1.2 billion. Without the extra funds — for an agency meant to be self-sufficient — USCIS has said more than 13,000 employees, of some 20,000 total workers, will be furloughed without pay indefinitely, starting next month.

Under Mr. Trump, USCIS has become a model of dysfunction. Perversely, that may be just fine with a White House that has been intent on deterring not only undocumented migrants but legal immigrants as well. It has done the latter largely through a matrix of policies that have made the agency much less a means by which immigrants are connected with U.S. employers and reconnected with relatives living in this country, and much more a nearly impassable obstacle course.

Well before the pandemic, applications for an array of immigrant categories plummeted as word spread that layers of new rules and vetting were driving down approval rates, and even trivial mistakes such as typos in applications would trigger rejections. In-person interviews were added as requirements for applicants who had not previously needed them, including skilled workers already in the country who needed visa extensions. Green card applications slumped in the Trump administration’s first two years and might fall further as applicants learn they would be disqualified if deemed likely to need public benefits such as subsidized housing or food stamps. The pandemic accelerated the agency’s death spiral as revenue derived from fees has dropped by half since March.

The effect of a mass furlough of USCIS staff would be to throw even more grit into the bureaucratic gears, further slowing approvals for work permits, including for high-skilled immigrants, and green cards. If the administration is intent on breaking the nation’s complex immigration machinery, which has supplied American businesses with the talent and energy of millions of employees, it is on the right path.

Employers are alarmed at the prospect of such a breakdown, with good reason. Virtually every sector of the country’s economy depends on a steady supply of immigrants, which in itself is justification for Congress to reassess USCIS’s fee-based model. Immigrants have provided the spark, drive and muscle that have driven growth and success in the United States since its founding. Given their contributions, it seems a gratuitous burden that they are also required to shoulder the cost of their admission to the country.

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

The solution is actually very simple. Congress should require DHS to reprogram the necessary funds to run USCIS from the unneeded wall, unnecessary and often illegal immigration detention, and counterproductive civil deportations. All private detention contracts should be terminated and the money repurposed to USCIS. There should be a moratorium on DHS removals until USCIS is back in full operation and has eliminated all backlogs. Fee increases should be barred.

Exceptions should be made allowing deportations for those convicted of “aggravated felonies” and those whom the DHS can show by clear and convincing evidence entered the U.S. illegally after the date of enactment, following an opportunity for a full and fair hearing before a U.S. Magistrate Judge at which they will have an opportunity to apply for asylum and other protections without regard to any regulation or precedent decision issued during the Trump Administration. Appeal from any adverse decision may be had by either party to the U.S. District Judge and from there to the Court of Appeals with an opportunity to petition the Supreme Court for review. U.S. District Judges shall have the option of designating sitting U.S. Immigration Judges (but not anyone who has served a BIA Appellate Immigration Judge) with five or more years of judicial experience to serve as a “Special U.S. Magistrate Judge” to hear such immigration cases.

If Democrats can’t get a “veto proof majority” in both houses, they should just let the USCIS remain in bankruptcy until we get better Government. Like the rest of the Trump immigration kakistocracy, USCIS is a dysfunctional mess 🤮 that serves no useful purpose under current conditions.

Welfare Reform: We’ve identified the largest group of “welfare cheats” in U.S. history. Collectively, this gang of public benefits fraudsters is known as “The Trump Administration.” Its Members are worse than useless. We are actually paying them to pollute our environment, inhibit our voting, spread deadly disease, block access to health insurance, undermine scientific truth, destroy our justice system, defend Confederate statues, spread racism and hate, commit crimes against humanity, turn our nation into a despised international laughingstock, and often line their own pockets and pockets of their cronies with ill-gotten loot while doing it.

But we have it in our power to end these gross abuses of our public purse and to throw this dangerous band of indolent sponges on society off the public dole! This November, vote like your life and the future of our nation depend on it! Because they do!

PWS

07-06-20

🇺🇸JULY 4 SPECIAL🗽: CRISTIAN FARIAS @ KNIGHT INSTITUTE WITH LOADS OF “PAYWALL-FREE” ONLINE RESOURCES HIGHLIGHTING REGIME’S ABUSE OF IJ’S 1ST AMENDMENTS RIGHTS AS WELL AS PUBLIC’S RIGHT TO KNOW ABOUT THE FRAUD, WASTE & GROSS ABUSES UNFOLDING DAILY IN AMERICA’S MOST OUTRAGEOUSLY UNFAIR AND MISMANAGED “COURT” SYSTEM! — Our Taxpayer Funds Are Being Flushed Down The Toilet 🚽 By “Billy The Bigot” & His “Maliciously Incompetent” Gang Of White Nationalist Enablers & Promoters @ EOIR!

Cristian writes:

Hi, Paul:

Lots of other, nonpaywalled coverage of this new case:

Link to complaint:

https://knightcolumbia.org/cases/naij-v-mchenry

https://www.inquirer.com/news/immigration-judges-trump-lawsuit-free-speech-eoir-columbia-knight-center-20200701.html

https://abcnews.go.com/Politics/immigration-judges-challenge-doj-limits-public-speaking/story?id=71552573

https://thehill.com/homenews/administration/505388-immigration-judges-union-sues-justice-dept-over-policy-restricting?rnd=1593610305

https://in.reuters.com/article/usa-court-immigration-judges/immigration-judges-challenge-justice-dept-over-policy-gagging-them-from-public-speech-idINKBN24263H?il=0

https://www.cnn.com/2020/07/01/politics/immigration-judges-lawsuit/index.html

Thank you for all you do,

Cf.

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

As many of you know, Cristian is a contributor to Courtside and a tireless advocate for free speech and Constitutional rights for everyone in America.

Thanks, Cristian, for all you do for America!

🇺🇸Celebrate America’s birthday by standing up for our Constitution and human dignity against the racism, ignorance, hate, & tyranny of the Trump regime!🗽

👍🏼Due Process Forever!⚖️

Here’s my previous reporting on this:

🤡CLOWN COURT REPORT: Dysfunctional “Court” System Notorious ☠️ For Denying Migrants’ Rights Forces Own Judges To Sue In Federal Court To Protect Their Individual Constitutional Rights! — No Wonder The Mis-Management-Induced Backlogs Are Endless & Growing!

PWS

07-04-20

😰YET ANOTHER SAD DAY FOR AMERICAN JUSTICE: Competence, Professionalism, Fairness, & Human Decency Depart EOIR — Every American Who Cares About Due Process & Color Blind Justice In America Should Be Outraged About Former Acting Chief Immigration Judge Christopher Santoro’s Untimely Departure & Thankful That He Had The Guts To Speak Truth To Power!

https://apple.news/AHkgjeG2HQQKcxUA5LntKNg

Hamed Aleaziz reports for BuzzFeed News:

A Top Immigration Court Official Called For Impartiality In A Memo He Sent As He Resigned

The judge was replaced by the Trump administration with the former top Immigration and Customs Enforcement prosecutor.

Posted on July 3, 2020, at 1:52 p.m. ET

Hamed Aleaziz

BuzzFeed News Reporter

A leading immigration court official stepped down Thursday after sending a pointed email to court employees emphasizing the importance of the appearance of impartiality and the benefits of providing protections for people fleeing to the US. The message came on the same day the Trump administration tapped the former top Immigration and Customs Enforcement prosecutor to take his position, a move that outraged immigrant advocates.

The Trump administration selected Tracy Short, previously the lead ICE prosecutor, for the chief immigration judge role. ICE prosecutors often take up roles as immigration judges, but the selection of Short, formerly ICE’s principal legal adviser, left some claiming the move would undercut the appearance of neutrality at the court.

Christopher Santoro, the acting chief immigration judge, appeared to signal that in his message to court employees announcing his resignation.

His resignation and Short’s hiring comes as the Trump administration has undertaken a monumental overhaul of the way immigration judges work: placing quotas on the number of cases they should complete every year, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets. In the meantime, the case backlog has increased and wait times have continued to skyrocket to hundreds of days.

“There will always be those who disagree with a judge’s (or jury’s) decision and our court system is no different,” he wrote in the email on Thursday, which was obtained by BuzzFeed News. “But for the public to trust a court system, for the public to believe that a court is providing fair and equitable treatment under the law, that court system must not only dispense justice impartially but also appear to be impartial. Maintaining the appearance of impartiality and fairness can often be more difficult than being impartial and is a goal each of us – regardless of our role – must strive for every day.”

Santoro, who had himself served as a senior ICE advisor during the Obama administration, said he delivers this message in training to immigration judges and it applied to everyone involved with the court.

“Santoro’s emphasis on impartiality and protecting vulnerable populations is a sharp departure from this administration’s priorities, which have focused around speedy adjudications and reducing the backlog,” said Sarah Pierce, an analyst at the Migration Policy Institute. “Someone who recognizes the dire need for impartiality in this system has to watch a prosecutor lead the charge in his wake.”

Two Department of Justice employees said the decision to tap Short was misguided. The Office of the Chief Immigration Judge “provides overall program direction, articulates policies and procedures, and establishes priorities” for the court.

“His hiring is further confirmation that the Executive Office for Immigration Review leadership wishes EOIR to be a tool for enforcement agencies, focused on removal orders and nothing else,” said one employee, who could not speak publicly on the matter. The employee said that Santoro is “incredibly respected, and, in normal times, he would have been the chief immigration judge.”

Another DOJ employee said that Short’s appointment was “one step closer to the death knell for impartiality at the Immigration Court and more persuasive evidence that our code of American justice and fairness is not being followed at the Department of Justice.”

Ashley Tabaddor, who heads the union that represents immigration judges, said they were sad to hear of Santoro’s departure, adding that he is “a well-respected judge and will be tremendously missed.”

In his email, Santoro praised the immigration court for its work in recent years.

“Despite the many challenges thrown our way – ranging from changing priorities to lapses in appropriations to the temporary loss of our case management system to our million-plus pending caseload – you have risen to meet and exceed expectations each and every time. I have never worked with a finer group of professionals,” Santoro wrote.

He later said that the “nation benefits when we welcome those who bring different skills, perspectives, and experiences, and when we protect those who would be persecuted or tortured in their home country. We also benefit when we ensure that our laws are enforced fairly and consistently.”

Observers of the court — including current and former officials — said the email was eye opening.

“I’m heartened, but not surprised, to see Judge Santoro join the dozens of judges who have resigned from this administration and expressed a deep concern for the due process rights of vulnerable asylum seekers in our immigration court system,” said Rebecca Jamil, a former immigration judge who stepped down due to the administration’s immigration policies. “For a court system to mean anything, the public has to trust that it is fair and unbiased, and the Immigration Court simply does not have that important contract with the current Attorney General. I’m grateful that Judge Santoro reached the same conclusion that I did.”

. . . .

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

Read the rest of Hamed’s article at the link.

This is yet another disgraceful incident in three years of unconstitutional bias and failure of due process at EOIR. The competent, scholarly, fair, and impartial are driven out and replaced by unqualified politicos.

Just heard this statement on TV in connection with yet another racially motivated killing: “We have a morality problem in America!” EOIR has both a competency and a morality problems. When will someone put an end to this unconscionable and deadly nonsense?

As I have said before, Judge Santoro was our Assistant Chief Immigration Judge during some of my time in Arlington. A “straight-up” professional who cared about both public service and the health and welfare of Court employees in very stressful situations.

What a squandering of public funds and goodwill when the competent are pushed out and replaced by those stunningly unqualified to serve in any type of judicial position, let alone one calling for ethical and moral leadership.

Thanks for your service, Chris.😎

Also, proud to be a member of the Round Table along with our courageous colleague, Judge Rebecca Jamil!

Due Process Forever!

PWS

07-03-20

🇺🇸😎⚖️🗽👍🏼LAW YOU CAN USE: Michelle Mendez and CLINIC Publish A New Practice Advisory on Opening & Closing Statements in Immigration Court

https://cliniclegal.org/resources/litigation/practice-advisory-opening-statements-and-closing-arguments-immigration-court

Practice Advisory: Opening Statements and Closing Arguments in Immigration Court

Last UpdatedJuly 2, 2020

Topics Litigation Removal Proceedings Appeals

Opening statements and closing arguments can win cases for clients, if the practitioner is able to deliver a performance that is both concise and compelling. This practice advisory offers guidance and tips that will help practitioners deliver concise and compelling opening statements and closing arguments in immigration court.

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

Read more and download this wonderful resource at the link.

Michelle and her team @ CLINIC promise more “great stuff” next week.

Going in Opposite Directions: Ironically, as the Trump DOJ has worked overtime to “dumb down” EOIR, Michelle and many others in the Immigration & Human Rights communities, particularly AILA, other NGOs, Clinical Professors, and pro bono counsel at “Big Law,” have been working even harder to promote “best immigration and legal practices” before all tribunals. And, despite the Supreme’s “willful blindness” to the Constitution, the rule of law, and human dignity as it applies to asylum seekers and migrants, the results are showing elsewhere in the justice system.

It also points to the obvious unconscionably overlooked untapped source for better Federal Judges in the future, from the Supremes to the Immigration Courts: the pro bono and clinical immigration and human rights bars — actually the main fount of courageous opposition to the regime’s concerted attack on our Constitution, our justice system, and our humanity.

If these folks and others like them were on the Supremes, American justice wouldn’t be in shambles and equal justice justice for all under our Constitution would actually be enforced, rather than degraded or intentionally skirted with legal gobbledygook. The lack of both legal and moral leadership from our highest Court in the face of a clearly out of control and unqualified White Nationalist Executive and his toadies is simply astounding, not to mention discouraging.

It’s little wonder that the tensions caused in no small measure by the Court’s systemic failure to stand up for voting rights, civil rights, the rights of other persons of color in the U.S., and to hold abusers at all levels accountable, is now overflowing into the streets. No, an occasional vote for a correct result from Roberts or another member of “The Five” is not going to solve the problem of Constitutional, racial, and moral dereliction of duty by our highest Court.

Almost every day, “real” Article III Lower Courts “out” some aspect of the outrageously biased and unprofessional performance of EOIR and the rest of Trump’s immigration kakistocracy before the courts. Even some GOP and Trump appointed Article III Judges have “had enough” and don’t want their professional reputations and consciences sullied by association with the regime’s unlawful White Nationalist agenda.

Unfortunately, however, the Federal Courts generally have failed to follow through by sanctioning the often unethical and dishonest performance of the regime in court and by shutting down EOIR’s unconstitutional “kangaroo courts,” DHS’s equally unconstitutional “New American Gulag,” and the fraudulent operation of bogus “Safe Third County Agreements,” “Remain in Mexico,” and patiently disingenuous ridiculously overbroad COVID-19 “immigration bars” (which are actually thin cover for Stephen Miller’s preconceived White Nationalist nativist agenda). Moreover, lower Federal Court Judges who courageously stand up against the regime’s unconstitutional agenda and program of “dehumanization” are too often improperly undermined by the Supremes (sometimes without explanations or “short circuiting” the system), thereby “greenlighting” further “crimes against humanity” by an unscrupulous and unethical Executive.

We’re making a permanent record of both the “crimes against humanity” committed by the regime and those public officials, be they so-called “public servants,” feckless legislators, or life-tenured judges who have actively aided, abetted, been complicit, or “gone along to get along” with Trump’s countless lies and abuses. Later judicial “corrections” by a better Court or legislative “fixes” by a real Congress will not reclaim the lives of those shot on the streets by police, infected with COVID-19 in the Gulag, kidnapped and abused by gangs in Mexico while waiting for fake hearings, or “rocketed” back to persecution and torture in the Northern Triangle and elsewhere in violation of U.S. and international laws without any meaningful process at all. Nor will they wipe out the abuses by governments at all levels elected without the full participation of American citizens of color and in poverty whose votes were purposely suppressed or political authority diminished by corrupt GOP pols and their Supreme enablers.

As we can see by the long-overdue historical reckoning coming to Confederates and other racists who actively worked to undermine our Constitution, block equal justice for all, and dehumanize other humans in America, there will be an eventual historical reckoning here, and justice ultimately will be served, even if not in our lifetimes. That’s bad news for Roberts, his right-wing colleagues, and a host of others who have willfully enabled the worst, most abusive, and most clearly lawless presidency in U.S. History, as well as the most overtly racist regime since Woodrow Wilson.

Due Process Forever!

This November, vote like your life depends on it! Because it does!

JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & BE PART OF THE SOLUTION TO UNEQUAL JUSTICE IN AMERICA!

PWS

07-03-20

☠️⚰️👎🏻🤡CLOWN COURT REPORT: BILLY THE BIGOT BARR APPOINTS STUNNINGLY UNQUALIFIED DHS ENFORCEMENT MAVEN, WITHOUT JUDICIAL EXPERIENCE, TRACY SHORT, AS NEW CHIEF IMMIGRATION “JUDGE” — Shock, Anger, Outrage Spreading Across Immigration & Legal Communities At Latest “Middle Finger” To Due Process & Fundamental Fairness Flipped By Racist Administration Of Human Rights Abusers!

💀☠️⚰️🏴‍☠️

https://www.justice.gov/eoir/page/file/1291891/download

July 2, 2020
EOIR Announces New Chief Immigration Judge
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Tracy Short as the Chief Immigration Judge of EOIR’s Office of the Chief Immigration Judge.
Biographical information follows:
Tracy Short, Chief Immigration Judge
Attorney General William Barr appointed Tracy Short as the Chief Immigration Judge in June 2020. Chief Judge Short received a Bachelor of Arts in 1990 from Texas Christian University and a Juris Doctor in 1995 from the Louisiana State University Law Center. Chief Judge Short began his legal career in 1995 as a judicial law clerk for Judge James M. Dozier, Jr., of the Third Judicial District Court of Louisiana. From 1997 to 1998, he served as a public defender, representing indigent criminal defendants in Louisiana state courts, while also practicing civil law. From 1998 to 1999, Chief Judge Short was an assistant attorney general for the Louisiana Department of Justice where he represented the State of Louisiana in civil litigation. From 1999 to 2000, he also served as a judicial law clerk for Justice Chet D. Traylor of the Louisiana Supreme Court. From 2000 to 2001, Chief Judge Short was a judicial law clerk for Judge Robert B. Maloney of the U.S. District Court for the Northern District of Texas. From 2001 to 2003, Chief Judge Short litigated removal cases on behalf of the Department of Justice as trial attorney with the former Immigration and Naturalization Service in Dallas. From 2003 to 2005, Chief Judge Short served as Assistant Chief Counsel in the Dallas office of U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA). In 2005, he was appointed as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office (USAO) for the Northern District of Texas, where he handled complex civil litigation involving ICE. In 2007, Chief Judge Short was appointed as a SAUSA in the USAO for the Eastern District of Texas, where he litigated criminal cases. From 2007 to 2009, he served as the Acting Deputy Chief Counsel and Senior Attorney in OPLA’s Dallas office. As a Senior Attorney, he litigated significant and complex immigration cases and served as the lead attorney for matters involving customs law and criminal investigations. From 2009 to 2015, he served as Deputy Chief Counsel in OPLA’s Atlanta office, where he managed litigation operations and client services in a multi- state field office. From 2015 to 2017, Chief Judge Short served as Counsel to the U.S. House of Representatives, Committee on the Judiciary’s Subcommittee on Immigration and Border
Communications and Legislative Affairs Division

Page 2
Security. From January 2017 to June 2020, he served as the ICE Principal Legal Advisor and, later, as a Senior Advisor to the ICE Acting Director. He is a member of the Louisiana State Bar Association and the State Bar of Texas.
— EOIR —
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all the cases it adjudicates.

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The final paragraph above is, of course, a sick joke.

I predict that we will hear more from the legal and the human rights communities about this latest abuse of authority by a corrupt White Nationalist regime committed to a program of crimes against humanity.

Due Process Forever!

This November, vote like your life depends on it. Because it does!

PWS

07-02-20

FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🏴‍☠️⚰️☠️👎

https://www.thenation.com/authors/felipe-de-la-hoz/

Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.

Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.

Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.

TOP ARTICLES2/5READ MOREPence Masks Up While Trump Keeps Dog-Whistling

Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.

Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”

The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.

Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.

Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.

“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.

While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

. . . .

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Read the rest of Filipe’s article at the link.

Filipe’s final point in the article is one we should all keep in mind:

For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.

The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.

I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.

Due Process Forever!

PWS

06-30–20

🏴‍☠️☠️👎🏻BILLY’S BIA BLOWS ANOTHER — After Two Trips to The 8th Cir. Over 5 Years, The BIA Is Batting .000 — Ortiz v. Barr — CIMT

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-cimt-ortiz-ii-obstruction

Dan Kowalski reports for LexisNexis Immigration Community:

CA8 on CIMT: Ortiz II (Obstruction)

Ortiz v. Barr

“[In Ortiz I, this] Court determined that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) [obstruction of legal process, arrest, or firefighting] is not categorically a crime of violence—and, thus, not an aggravated felony—because the minimum amount of force required to sustain a conviction under that statute is less than the level of force required to constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we granted Ortiz’s petition for review, vacated the order of removal, and remanded to the BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude.

… Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to decide the issue. Ortiz again moved to terminate removal proceedings, arguing that a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that Ortiz’s prior conviction was categorically a crime involving moral turpitude because (1) the statute requires intentional conduct, and (2) using or threatening force or violence to obstruct legal process entails conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s decision, adding that the minimum conduct punishable by the statute falls within the definition of “moral turpitude” because it involves some aggravating level of force or violence in the context of interference with important and legitimate government functions. Ortiz again filed a timely petition for review.

… [W]e conclude that the BIA erred in finding that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral turpitude. For the foregoing reasons, we hold a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and vacate the order of removal.”

[Attorney David L. Wilson writes: “This statement is particularly helpful and could go unnoticed. The court wrote, “Further, because subdivision 2(2) is a penalty provision, rather than a “statutory element[] that criminalize[s] otherwise innocent conduct,” the presumption in favor of a scienter requirement does not apply. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).” The government has been trying to invoke this argument for some time, and the Eighth just shut it down. A round of applause to Anne Carlson for the first round of the fight, and Brittany Bakken for bearing with me for the second round.”]

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

Bottom line: For more than five years over two Administrations on a number of charges, EOIR has been attempting to wrongfully deport this individual. This falls below the “minimum level of competence” that should be expected of an “expert tribunal” that is nothing other than a deportation factory with a fancy title. And, let’s remember that the 8th Circuit, out in the middle of “America’s Heartland,” is hardly the 9th Circuit, the 7th Circuit, or even the 4th Circuit, all of which have been much more openly critical of the BIA’s lousy performance.

The cost of “deportation at any cost” is too high for America! Whatever happened to due process, fundamental fairness, and impartial judging? Gone by the wayside! No wonder this unfair and dysfunctional system is running a largely self-inflicted backlog of more than 1.4 million known cases and “who knows how many” that are lost or otherwise “off-docket” in the EOIR morass of biased judging and gross mismanagement.

When will it end? How many will be wrongfully deported or die because one of American’s largest “court” systems (that isn’t’ a “court” at all) is allowed to continue to operate far below minimum levels of constitutionality and competence?

Due Process Forever!

PWS

06-29-30

🏴‍☠️☠️BILLY THE BIGOT BARR’S BIASED BIA’S EFFORT TO SEND LGBTQ INDIVIDUAL TO BE TORTURED IN MEXICO THWARTED BY 9TH CIR. – Unconstitutional “Star Chamber” Ignored Binding Circuit Precedent in Deadly Attempt to Carry Out White Nationalist Regime’s Assault on Legal & Human Rights of Migrants — Xochihua-Jaimes v. Barr

Immigration Law

Daniel M. Kowalski

26 Jun 2020

torture

cat

Mexico

zetas

LGBT

More

CA9 on CAT, Mexico, Zetas, LGBTQ: Xochihua-Jaimes v. Barr

Xochihua-Jaimes v. Barr

“Substantial evidence does not support the BIA’s determination that Petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The BIA reached its determination by misapplying our precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record. Contrary to the BIA’s determination, we hold that the existing record compels the conclusion that Petitioner has met her burden under CAT. … the record also includes extensive evidence that LGBTQ individuals are subject to a heightened risk of torture throughout Mexico. Considering all relevant evidence, we conclude that the record compels the conclusion that petitioner has met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to her native country. … We grant the petition and remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico.”

[Hats way off to appointed pro bono counsel Max Carter-Oberstone (argued) and Brian Goldman!]

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

One of the best things about this case is that obviously frustrated by the BIA’s “malicious incompetence” and basically contemptuous treatment of binding Circuit precedent, the Court took the unusual step of granting the CAT application outright. Often, cases are remanded to the BIA for useless “redos.” Not only can they get lost on EOIR’s totally out of control docket of 1.4 million+ cases, but that gives the BIA another undeserved chance to concoct some bogus rationale to screw the respondent.

It’s past time for more courts to treat EOIR as the hostile “justice free zone” it has become under Sessions and now Barr. The absolute disaster at the DOJ under Barr was on full, ugly display before the House this week. Courts must treat the DOJ as the unethical, biased, renegade organization that it really is rather than pretending that it still performs any legitimate functions under our
Constitution.

The Supremes might feign ignorance of the Trump regime’s institutionalized racist assault on migrants, particularly those seeking protection. But, some of the lower Federal Courts finally are catching on to what’s happening here. How is this type of systemic, illegal, incompetent, and unethical performance by Billy Barr’s wholly-owned “courts” that are not “courts” at all deemed acceptable? People’s lives are at risk!

Better Executive + Better Legislature + Better Judges = Equal Justice for All!

PWS

06-27-20

🏴‍☠️☠️👎🏻🤮CRIMES AGAINST HUMANITY: HOW AMERICA IS DISGRACED BY A CORRUPT, RACIST, WHITE NATIONALIST REGIME THAT HAS LAUNCHED A COWARDLY & ILLEGAL ATTACK DESIGNED TO KILL ASYLUM SEEKERS — Hon. Jeffrey S. Chase, “Taking a Sledgehammer to Asylum”

https://www.jeffreyschase.com/blog/2020/6/23/taking-a-sledgehammer-to-asylum

Taking a Sledgehammer to Asylum

The Trump Administration has repeatedly acted to damage our country’s asylum laws. Its latest move, expressed in 161 pages of proposed regulations, does so with a sledgehammer. The proposal claims that “as an expression of a nation’s foreign policy, the laws and policies surrounding asylum are an assertion of a government’s right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.” Note how “aiding those in true need of protection from harm” comes last. The proposal supports the preceding statement with a case that not only had nothing to do with asylum, but predated by eight years the enactment of the 1980 Refugee Act, which continues to serve as our country’s law of asylum.

It was necessary to reach back so far because the Refugee Act actually stands for the opposite proposition, placing the protection of those in need above foreign policy considerations. The Refugee Act replaced our Cold War-influenced refugee preferences with an obligation to provide protection to those from any country fearing persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.

The Department of Justice tried to limit the impact of this monumental change at its outset by interpreting the new legal standard as restrictively as possible. In 1987, the Supreme Court rejected the Department’s interpretation of the term “well-founded fear,” finding that the meaning the Department applied to the term was not the one intended by Congress. The Court found it clear that the primary purpose of Congress was to bring U.S. law into conformity with the 1967 Protocol on the Status of Refugees. It therefore looked for guidance to UNHCR and legal scholars, and concluded that the standard passed by Congress allowed for as little as a ten percent chance of persecution in order to merit asylum.

More than three decades later, District Court Judge Emmet G. Sullivan put a stop to the Department’s attempt to exclude victims of domestic violence and gang violence from asylum protection at the credible fear stage. In a lengthy, detailed decision whose reasoning the Sixth Circuit recently adopted for full asylum determinations, the court reiterated that Congress, and not the Attorney General, creates our asylum laws, and that Congress intended for those laws to conform to the Protocol’s more expansive view.

It was because of that more expansive view that the Protocol, and its predecessor, the 1951 Convention on the Status of Refugees, avoided the type of strict definitions the proposed regulations seek to impose. One renowned scholar explained the drafters’ intent “to introduce a flexible concept which might be applied to circumstances as they might arise; or in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men.”1 It is this built-in flexibility that the latest proposal takes exception to.

Of course, it is still Congress, and not the executive branch, that enacts our asylum laws. And should the present proposal become a final rule before this administration is done, it will be the reassertion of that reality by the courts that will save those seeking refuge here.

I plan to address the different sections of the proposals in installments. I begin with the proposal to redefine “political opinion.”

The last few months have taught us that, under the Trump Administration, everything is political. Even the decision to wear a mask and self-isolate out of consideration to our neighbors has been cast as an expression of political opinion. The virus itself was first depicted as a Democratic hoax; once its existence could no longer be denied, it had to be given a nationality and portrayed as part of a foreign plot. This is a virus we are talking about.

The Administration saw political allies in armed and angry mobs who somehow portrayed temporary rules designed to protect us all by slowing the spread of disease as a denial of their basic human rights. And then the same administration branded as political enemies those protesting the very real and systemically ingrained deprivation of their basic human rights solely because of the color of their skin. The irony is not lost in this very same government that politicizes everything now imposing a very narrow, strict view of what can be called political opinion for asylum purposes.

Regulations may define or clarify laws, but may not rewrite them. And the courts need only defer to the Department’s interpretation where the language of the law itself is ambiguous. Courts may go to great lengths and employ all tools of construction at their disposal before deeming a statute ambiguous.

Looking to the Refugee Act, the courts will find that in the 40 years since its passage, the only amendment relating to its definition of political opinion expanded the meaning of that term. In 1996, the Republican-controlled Congress amended the refugee definition to read that coercive abortion and sterilization procedures constitute persecution on account of the victim’s political opinion. Neither the wording of the statute nor its application by the BIA require any inquiry into the motives or beliefs of the victim of the coercive family planning policy. In other words, a woman need not declare in an online manifesto that she will become pregnant as a statement of protest against an oppressive government’s policy. One at risk of abortion for any pregnancy by law fears persecution on account of her political opinion.

The proposed regulations acknowledge this. However, they fail to reconcile how the rest of the proposed language on this topic, the first attempt ever to restrict by either statute or regulation what may constitute a political opinion, is consistent with Congress’s adoption of such an expansive view of political opinion to allow even an accidental pregnancy to satisfy the term’s definition.

The Department provides a weak justification for interjecting itself into the matter in the first place, claiming that the evolving state of case law makes it just too difficult for immigration judges to apply the law consistently. Any pretense of providing clarification vanishes upon attempting to decipher the proposed guidance on the topic. Under the proposed rule, immigration judges, asylum officers, and the BIA will be precluded from granting asylum based on a political opinion “defined solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a cause against such organizations related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.” What could be clearer than that?

As its sole example of the confusion that purportedly warrants the administration stepping in, the proposal cites two recent decisions. The first (which we can assume the administration doesn’t like) is the Second Circuit’s recent decision in Hernandez-Chacon v. Barr, holding that in resisting rape by an MS-13 member, the asylum applicant expressed “her opposition to the male-dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women.”

The other case referenced was a 15 year old Fourth Circuit decision, Saldarriaga v. Gonzales, which the Department describes as holding that “disapproval of a drug cartel is not a political opinion.” In its attempt to demonstrate that immigration judges sitting in the jurisdictions of the Second and Fourth Circuits might reach different results, the Department conveniently omits a much more recent Fourth Circuit decision, Alvarez Lagos v. Barr, which found unrefuted evidence that the Barrio 18 gang imputed an anti-gang political opinion to the asylum-seeker’s nonpayment of extortion and flight to the U.S. Including that decision would have cleared up the purported confusion used to justify the new rules, so the proposal simply ignored it.

But even accepting the Department’s view that different circuits might take different views on this topic, and that somehow, it’s the responsibility of someone like Stephen Miller, as opposed to the Supreme Court, to resolve such conflict, would applying that garbled definition cited above (and no, it does not become clearer with repeated reading) change the outcome of Hernandez-Chacon? Because in the view of the court, the asylum applicant in that case did not simply express a generalized disapproval of a gang. Her opposition to systemic injustice perpetuating brutality against women, who are viewed as a subordinate class, is an expression of something much larger, in which the government is implicated.

Grasping at additional straws, the Department also pointed to one sentence in a BIA decision from 1996, Matter of S-P-, stating the need in that case to examine whether the persecutors were motivated at least in part by their belief that the asylum applicant held political views “antithetical to the government.” This, according to the administration, is proof that only views antithetical to the government can be political opinion. However, in that case, the asylum seeker had been arrested, detained for six months, interrogated, and tortured by the government, specifically, government soldiers. So in determining whether such persecution was on account of the applicant’s political opinion, in that particular case, the Board obviously focused on whether those soldiers thought the victims views were anti-government. The sentence in no way intended to state that under all circumstances must political opinion be one that is directly aimed at the government. By analogy, the BIA didn’t say that only women can be members of particular social groups because in one gender-based case, it analyzed whether the social group elements were “fundamental to the individual identity of a young woman.” See Matter of Kasinga, 21 I&N Dec. 357, 366 (BIA 1996). The point is, the Board used the language necessary to decide the case before it, and for the Department to now pretend otherwise is disingenuous.

Note:

Atle Grahl-Madsen, The Status of Refugees in International Law 193 (1966).

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished with permission.

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

A nation’s inhumanity to others, allowing unqualified individuals like Stephen Miller to make policy, and moral cowardice will have severe future consequences.

PWS

06-24-20

🏴‍☠️☠️NO, IT’S NOT “JUST ENFORCING THE LAW” AS ALBENCE & THE DHS FALSELY CLAIM — THE TRUMP ADMINISTRATION’S INTENTIONALLY CRUEL, STUPID, WASTEFUL, IMMORAL, & ENTIRELY COUNTERPRODUCTIVE DEPORTATION POLICIES ARE “CRIMES AGAINST HUMANITY” — We All Are Demeaned & Reduced As Human Beings By Allowing Trump’s DHS & His DOJ to Get Away With This!

https://www.themarshallproject.org/2020/06/22/the-true-costs-of-deportation

Julia Preston reports for The Marshall Project:

The True Costs of Deportation
When immigrant parents of American children are expelled, the lives of their loved ones can fall apart. Here are the stories of three families who faced financial ruin, mental health crises—and even death.
By JULIA PRESTON

Before her husband was deported, Seleste Hernandez was paying taxes and credit card bills. She was earning her way and liking it.
But after her husband, Pedro, was forced to return to Mexico, her family lost his income from a job at a commercial greenhouse. Seleste had to quit her nursing aide position, staying home to care for her severely disabled son. Now she is trapped, grieving for a faraway spouse and relying on public assistance just to scrape by.
She went, in her eyes, from paying taxes to depending on taxpayers. “I’m back to feeling worthless,” she says.
This story was published in partnership with The Guardian.
Across the country, hundreds of thousands of American families are coping with anguish compounded by steep financial decline after a spouse’s or parent’s deportation, a more enduring form of family separation than President Trump’s policy that took children from parents at the border.
Trump has broadened the targets of deportation to include many immigrants with no serious criminal records. While the benefits to communities from these removals are unclear, the costs—to devastated American families and to the public purse—are coming into focus. The hardships for the families have only deepened with the economic strains of the coronavirus.
A new Marshall Project analysis with the Center for Migration Studies found that just under 6.1 million American citizen children live in households with at least one undocumented family member vulnerable to deportation—and household incomes drop by nearly half after deportation.
About 331,900 American children have a parent who has legal protection under DACA, or Deferred Action for Childhood Arrivals, the program that shields immigrants who came here as children. After the Supreme Court ruled on Thursday that Trump’s cancellation of the DACA program was unlawful, those families still have protection from deportation. But the court’s decision allows the president to try to cancel the program again. The debate cast light on the larger population of 10.7 million undocumented immigrants who have made lives in the country, raising pressure on Congress to open a path to permanent legal status for all of them.
We examined the impact of the wrenching losses after deportation and the potential costs to American taxpayers of expelling immigrants who are parents or spouses of citizens.
After an immigrant breadwinner is gone, many families that once were self-sufficient must rely on social welfare programs to survive. With the trauma of a banished parent, some children fail in schools or require expensive medical and mental health care. As family savings are depleted, American children struggle financially to stay in school or attend college.
Three families in northeastern Ohio, a region where Trump’s deportations have taken a heavy toll, show the high price of these expulsions.

. . . .

****************
Read the rest of Julia’s article at the link.

This isn’t the first time in American history that invidious racially-motivated enforcement of bad laws has been used to dehumanize or abuse “the other” while hiding behind transparently fake law enforcement pretexts. Poll taxes anyone?

A straightforward reading of our Constitution says that removing parents of U.S. citizens and breadwinners of American families without compelling reasons for doing so (lacking in these cases) is unreasonable and therefore a violation of Due Process. It’s time to stop doing the immoral and unconstitutional! And it’s past time to insure that public officials like Albence who promote and defend these assaults on humanity are removed from power.

The current institutions of Government have initiated, carried out, or failed to stop these illegal actions. Disappointing, but perhaps not surprising, considering that the nation, by minority vote, enabled a scofflaw White Nationalist regime in 2016.

But, voters still have the political power to oust the abusers of humanity and purveyors of racially-motivated lies and false narratives, and to insist on long-overdue changes to the system to make due process (reasonability), fundamental fairness, and equality under the law a reality for the first time in U.S. history, rather than continuing to be the Constitution’s intentionally unfulfilled promises.

Due Process Forever!

PWS

06-24-20

CHANNELING JOHN LENNON? – Conservative Judiciary Revolts! – Hand-Selected Over Two-Decades By America’s Chief Prosecutors to Quash Dissent & Promote Compliance With DOJ’s Politicized “Priorities,” Immigration Judges Chafe Under Interference, Humiliation, Lack of Concern for Health & Safety by Their Political Boss “Billy the Bigot” Barr!

REVOLUTION

By The Beatles

[Intro]
Aah!

[Verse 1]
You say you want a revolution
Well, you know
We all want to change the world
You tell me that it’s evolution
Well, you know
We all want to change the world
But when you talk about destruction
Don’t you know that you can count me out

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Verse 2]
You say you got a real solution
Well, you know
We’d all love to see the plan
You ask me for a contribution
Well, you know
We’re all doing what we can
But if you want money for people with minds that hate
All I can tell you is, brother, you have to wait

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Instrumental Break]

[Verse 3]
You say you’ll change the constitution
Well, you know
We all want to change your head
You tell me it’s the institution
Well, you know
You better free your mind instead
But if you go carrying pictures of Chairman Mao
You ain’t going to make it with anyone anyhow

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Outro]
Alright, alright
Alright, alright
Alright, alright
Alright, alright!

Music and lyrics from Genius.com:

https://genius.com/

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

https://prospect.org/justice/revolt-of-the-immigration-judges/

From American Prospect:

The Revolt of the Judges

The Trump administration has ordered immigration court judges to reject more applicants and speed up trials—and it wants to bust the judges’ union.

BY STEPHEN FRANKLIN

JUNE 23, 2020

First you see scenes from classic movies of wizened judges, brave lawyers, and contemplative juries, but then the video lays out its grim theme: This is not what happens in America’s immigration courts.

These courts are subject to political influences, a narrator explains. They are driven by political messages, and bound by rules based on the “whims” of whoever is in power in Washington, D.C., she says. They don’t provide the blind justice that Americans expect. What they provide is assembly-line justice.

Who is making these claims? A hard-line political or fringe legal group? Hardly. The video is from the National Association of Immigration Judges (NAIJ), the union that represents the nation’s 460-plus immigration judges—reasonably well-paid lawyers, many of whom come from government and law enforcement backgrounds.

Nor is the video the first such salvo from the judges’ group, which has lobbied Congress and spoken out frequently about what’s gone exceptionally wrong with the immigration courts under the Trump administration. Such criticisms, the judges say, are the reason that the government sought last August to decertify their union, the only such effort taken by the Trump administration against a federal workers’ labor organization.

“They are trying to silence the judges by silencing their union,” says Paul Shearon, head of the 90,000-member Professional and Technical Engineers union, to which the NAIJ has been affiliated for the past 30 years. He worries that busting a federal union may be the “next step” in the Trump administration’s actions meant to weaken all federal unions.

Shearon is confident, however, that the union will win its fight against decertification when the local level of the Federal Labor Relations Authority (FLRA) issues its ruling. He is “not so optimistic,” though, that it will prevail at the higher level of the FLRA, where two of three boardmembers are Trump appointees and “clearly political players.” Though the government has sought to speed up a ruling, the judges do not know when a decision is likely—but they expect one before the November election.

The judges’ complaints are many.

. . . .

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

Read the rest of the article and view the video “The Immigration Courts: Nothing Like You Have Imagined.”

Should be required viewing for every Justice, Federal Judge, U.S. Legislator, and law student.

You don’t need a law degree to know that something purporting to be a “court” where a notoriously corrupt and dishonest political prosecutor is directing “his judges” to deny asylum and speed up the assembly line is unconstitutional under the Fifth and Fourteenth Amendments. Yet, every day, life-tenured Court of Appeals Judges rubber stamp the results, often effectively death sentences, of this Star Chamber without questioning the obvious defects. Why?

America’s need for judicial reform and establishing scholarship, courage, integrity, fairness, commitment to due process and human rights, practical problem solving, and humanity as the hallmarks of judicial service runs much deeper than the Immigration “Courts.” If we want to achieve “equal justice for all” as required by our Constitution, but not being uniformly delivered by our judiciary, we need better judges at all levels of our Federal Judiciary.

That starts with throwing out Trump and the GOP Senate that has stuffed our Article III Judiciary with unqualified right-wing ideologues, intentionally tone-deaf to the legal and human rights of refugees, immigrants, people of color, women, the poor, working people, and a host of others whose humanity they decline to recognize. But, that is by no means the end of the changes necessary!

Due Process Forever. Complicit Courts, Never!

PWS

06-24-20

SPECTACLE @ JUSTICE: POPE BILLY CONVENES ☠️“CADAVER SYNOD”☠️— Looks to “Exhume” Decade-Old “Dead” Case for Punishment in EOIR Star Chamber!

Cadaver Trial — Jean-Paul Laurens
Pope Formosus & Stephen VI
1870

Pope Formosus died on April 4, 896. But, if he thought his worldly sins had passed on with him, he had not counted on the tenacity of his successor Pope Stephen VI. In 897, “PS-6” had his predecessor’s body dug up and the corpse brought before the Papal Court to answer charges of perjury, violating canon law, and illegally serving as a bishop.

The corpse was dressed and propped up on a throne. Apparently recognizing Formosus’s financial distress and limited mental capacity, PS-6 appointed a church deacon to be the dead Pope’s “mouthpiece.” There are no records, however, of the deacon’s actually consulting with his “client” on a defense strategy. PS-6 vigorously prosecuted the case.

Perhaps not surprisingly, the corpse was found guilty after trial. Formosus was stripped of his vestments, had three fingers cut off his right hand, and was unceremoniously thrown into the Tiber River weighted down with the 9th Century equivalent of “concrete overshoes.”

In a rather ironic twist of fate, the corpse eventually resurfaced and washed ashore. Finally finding the love and devotion that had eluded him in life, as a washed up corpse, Formosus started to perform miracles and became an object of veneration by the people. They turned on PS-6, who was eventually imprisoned and strangled. Perhaps the moral here is “don’t mess with the dead.”

Now, the direct successor to PS-6, Pope Billy the Bigot Barr, has reached back into the reign of King George II of Bush to exhume the corpus of A-M-R-C-, finally laid to rest in the Year of Our Lord 2006, the sixth year of the reign of Bush II. He intends to seek “justice” before the Star Chamber of the EOIR, his private judge, jury, and executioner.

But, watch out Billy, as PS-6 found, even beating up on dead corpses and other vulnerables can be dangerous! Cowardly arrogance and gross abuses of justice, divine or human, can come back to bite even the high and mighty.

The potential for post-mortem perjury prosecutions should be of grave concern to Trump, Billy, Gonzo, “Big Mac” With Lies, Nielsen, Kelly, and a host of other Trump officials. The possibility of post-mortem disbarment for outgoing Trump Solicitor General Noel Francisco and his band of truth and decency challenged DOJ lawyers should also haunt their futures, along with the ghosts of the broken bodies, cries of abused children, and souls of those only “crime” was to seek justice in America that they have unjustly maligned, prosecuted, and persecuted in the name of Trump’s White Nationalism.

Meanwhile, the Jesters of the Papal Court 🤡🤹‍♂️, also known as Article III Judges, continue to watch the spectacle of American justice dying before their eyes while they daily fail to take the strong, courageous, action to end Billy’s Star Chambers!

An outstanding lecture on “The Cadaver Trial” (and other Great Trials of World History) by Professor Douglas O. Linder of the U. Of Missouri-KC School Law is available on The Great Courses. You can watch the trailer and sign up for a free trial subscription (if not already a member) here. https://www.thegreatcoursesplus.com/the-great-trials-of-world-history-and-the-lessons-they-teach-us “The Cadaver Trial” is among the three Medieval Trails covered in “Lecture #3” and inspired this piece.

The latest on the Strange Saga of A-M-R-C- and the adventures of Pope Billy the Bigot can be found at LexisNexis Immigration Community courtesy of Papal Historian Dan Kowalski. https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/eoir-posts-case-underlying-matter-of-a-m-r-c-

PWS

06-21-20

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

By Paul Wickham Schmidt

Special to Courtside

June 14, 2020

Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules.

If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”

Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel? Absolutely not! This system operates right here in our United States of America, right now.

It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.

It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition.

No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted “Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.

In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!

It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.

The three things I would do right up front are:

First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.

Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.

Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).

Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!

This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.

DHS/BIA JOINT DEPORTATION MILL CONTINUES TO CRANK OUT ERRONEOUS DENIALS — 2D CIR LATEST TO EXPOSE POTENTIAL DEATH SENTENCE W/O DUE PROCESS — Martinez de Artiga v. Barr — The Vile Legacy of Those Complicit in The Trump Regime’s Racist Human Rights Abuses Will Be Their Lasting Shame!

Rebecca Press Esquire — Rebecca Press, Esquire
Legal Director
UnLocal

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca2-on-cat-el-salvador-ms-13-martinez-de-artiga-v-barr

Dan Kowalski reports for Lexis/Nexis Immigration Community:

Daniel M. Kowalski

10 Jun 2020

CA2 on CAT, El Salvador, MS-13: Martinez de Artiga v. Barr

Martinez, 2d Cir.

“Patricia Xiomara Martinez De Artiga challenges the denial of her 26 application for asylum, withholding of removal, and protection under the 27 Convention Against Torture (CAT). Martinez listed her son as a derivative 28 beneficiary on her application. The Immigration Judge (IJ) found that Martinez 29 testified credibly regarding serious, individualized threats against her and her 30 children by the infamous Mara Salvatrucha (MS-13) gang. Nevertheless, the IJ 31 denied Martinez’s claims for asylum and withholding, concluding that the 32 gang targeted Martinez because she had frustrated the gang’s recruitment 33 efforts and not on account of membership in her son’s family. On the issue of 34 CAT protection, the IJ determined that Martinez failed to meet her burden for 35 relief because she fled El Salvador promptly after MS-13 threatened her. We 36 hold that the IJ erred as a matter of law when it penalized Martinez for her prompt flight, and we cannot confidently predict that a remand would be 2 futile. We therefore DENY the government’s motion for summary denial, 3 GRANT Martinez’s petition for review, and REMAND the case.”

[Hats off to Rebecca Press!]

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

Let’s see. Woman credibly threatened with torture by group known to have capability, often aided and/or abetted by a corrupt and often complicit government, and renowned for leaving a trail of headless corpses behind. She does what any reasonable human might do in the same position: flees immediately for her life. It’s an “open and shut” case for CAT protection — should have been granted by stipulation between the parties.

Instead, in the warped, twisted, irrational, misogynist, and racially biased world of EOIR, a Latino women’s rational actions become a judge’s reason to deny her clearly warranted protection. According to this judge, she had to be dumb or unfortunate enough to wait to be tortured or killed to get protection. Of course it’s absurd! But, what’s even more absurd is that a corrupt, unconstitutional system that daily metes out this type of deadly utter nonsense to vulnerable humans seeking legal protection is allowed to continue to operate in our nation at all.

Can it really get any worse! It raises the obvious question of why the “appellate immigration judges” who approved this ludicrous abomination of illegality and “counter logic” are still on the bench rather than in remedial training or looking for other jobs.

It’s no surprise that a fundamentally unjust and unconstitutional system that wastes time looking for ways to deny cases that should easily be granted is running an uncontrolled backlog of at least 1.4 million cases. It’s obvious that under Sessions, Whitaker, and Barr, the already stressed, reeling, and mismanaged Immigration “Courts” have become hotbeds of misogyny, anti-immigrant bias, anti-asylum bias, anti-Latino bias, pro-DHS favoritism, unprofessionalism, grotesque mismanagement and waste of taxpayer funds, and just all around horrible judging. They are America’s Star Chambers, pure and simple.

Remanding individual cases is not going to fix these systemic problems that are bringing down our Constitution and de-legitimizing our entire justice system. But, shutting down the system and requiring that it be administered by an independent judicially-appointed monitor to return some semblance of due process and fundamental fairness is not only within the Article III Courts’ power, but is actually constitutionally required to halt this Administration’s systemic abuses of justice. Or, send the cases that actually need to be tried at this point in time to U.S. Magistrate Judges for real due process hearings.

The Courts of Appeals constantly expose the elementary mistakes, illegality, outright irrationality, the widespread, intentional denials of due process, fundamental fairness, and the gross failures of basic judicial expertise by the “EOIR Subdivision” of DHS Enforcement. But, you can be sure that this is just the “tip of the iceberg.”

Some Court of Appeals panels use the same “rubber stamp” techniques as the BIA, hiding their own deficiencies behind a shield of “undue deference” to a failed and unconstitutionally biased agency. And, even more individuals with potentially valid claims are unfairly turned down because they can’t find competent lawyers or don’t have the wherewithal to get to the Court of Appeals at all.

Then there are those who can’t stand the pain and torture inflicted by the “New American Gulag” so give up viable claims without full litigation. Or they are sent to rot and die in Mexico waiting for a purposely unfair hearing system stacked against.

Now, tens of thousands, many with potentially valid claims for protection, are simply being turned back at the border in clear violation of our statutes, our Constitution, and international obligations, not to mention our obligations to our fellow humans. They are denied access to the system. The Administration fabricates numerous lies and false myths to justify its actions, most rooted deeply in the anti-Hispanic racism and misogyny of Trump, Miller, and their accomplices.

The reasons given by the regime for this racist misconduct are phony as a three dollar bill. Yet, some equally dishonest authorities, including judges who should know better, will accept them without critical examination of their fraudulent nature.

Complicity comes in many forms and can often be hidden in the present. But, the the massive, intentional, human rights violations, fueled by the inherent racism of the Trump Administration and its toadies, will someday come out. The full extent of the entirely unnecessary human carnage inflicted on humanity by our nation and the invidious reasons behind it will be documented.

Then, future generations will ask: Where were the Federal Courts while this was happening? Why didn’t privileged and supposedly independent life-tenured judges stop the “slaughter of innocents?” Why did they allow baby jails, kids in cages, family separation, torture in the New American Gulag, Star Chambers, and Nazi-style abuses by corrupt U.S. border guards to continue, unabated? Why were they complicit in the dehumanization of people of color by an overtly racist and scofflaw regime? What is it about Trump’s and Miller’s racist agenda that they were too dim or intellectually dishonest to understand?

Justice will be too late for the dead, tortured, maimed, dehumanized, and destroyed. But, the reputations of these “Modern Day Confederates, Jim Crows, and their enablers” eventually will come tumbling down just like the statutes of their morally and intellectually bankrupt predecessors who also fought for or advanced the cause of racism and man’s inhumanity to men, women, and particularly, children. They had their own flimsy excuses, fabrications, myths, and B.S. justifications which have crumbled over time leaving just the nakedness and ugly truth of their racism and/or complicity for others to see.

This is not a “normal Administration” and falsely treating it as such by approving or failing to stand up to their attacks on our Constitution, human rights, and human dignity is not “normal behavior” for Federal Judges, legislators, and other public officials who allow this grotesque system to continue to destroy lives. “Deferring” to patently racist schemes and overtly biased officials isn’t legal, even when the “cover” of some other legal pretext is offered.

Those who are witness to the many abuses must insure that those who operate and allow this thoroughly corrupt system to persist don’t escape with the “Nuremberg Defense” of “just following orders” or “just following the law.”

Actually, equal justice for all isn’t just a slogan. Our Constitution clearly requires it, and it’s the job of Federal Judges to insure that it happens. Judges who won’t do that, don’t belong on the bench. Certainly, when there is regime change, no future Federal Judge or Justice should be appointed or confirmed unless he or she has demonstrated a commitment to equal justice for all supported by a record of opposing the systemic racial injustice and other invidious discrimination inflicted by the Trump regime through its program of “Dred Scottification” of the other.

There is no national emergency more important right now than the failure of our justice system to provide and enforce equal justice for all. The many who are enabling this regime’s toxic agenda by insuring that justice is unequal and that the system discriminates against and demeans immigrants, asylum applicants, and others of color are themselves operating outside the law, not to mention humanity. There will be a reckoning! Count on it!

Due Process Forever. Complicity in Racist Abuses, Never!

PWS

06-13-20

Due Process Forever! Clown Courts Never!

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PWS

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