"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Immigration Tent Courts at Border Raise Due-Process Concerns
By
Michelle Hackman and
Alicia A. Caldwell | Photographs by Verónica G. Cárdenas for The Wall Street Journal
Dec. 14, 2019 9:00 am ET
BROWNSVILLE, Texas—Each morning well before sunrise, dozens of immigrants line up on the international bridge here to enter a recently erected tent facility at the U.S. border.
Inside a large wedding-style tent, the government has converted shipping containers into temporary courtrooms, where flat screens show the judge and a translator, who are in front of a camera in chambers miles away.
The tents, which appeared at ports of entry here and up the Rio Grande in Laredo in late summer, are the latest manifestation of the Trump administration’s evolving response to a surge of migrants seeking asylum at the southern border.
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Migrants are ushered to these courts dozens at a time, allowing them access to the U.S. legal system without admitting them onto U.S. soil. They are already part of yet another Trump administration experiment, the Migrant Protection Protocols, which requires migrants to live in Mexico for the duration of their court cases.
The administration says the tent courts are designed to help the immigration system move more quickly through cases, providing asylum faster for qualified applicants and turning away the rest—many of whom, the administration says, have submitted fraudulent claims.
In the past, nearly all families and children arriving at the border were allowed into the U.S. to await hearings. But now, tens of thousands of asylum seekers must wait months in Mexican border cities that have some of the highest crime rates in the Western Hemisphere.
Asylum seekers waited in line to attend their immigration hearings on the Gateway International Bridge in Matamoros.
On a recent Friday, Judge Eric Dillow connected with the Brownsville tent via videoconference from his courtroom in Harlingen, Texas, about 30 miles away. The migrants, seated at a folding table, were shown on a large screen.
Judge Dillow planned to hold hearings for 28 migrants that morning, but only 17 appeared at the bridge the requisite four hours before their 8:30 a.m. hearing. Only two brought a lawyer. The rest were read their rights as a group, and when asked if they had questions, none raised their hands.
James McHenry, head of the Executive Office for Immigration Review, the Justice Department agency that oversees immigration courts, said temporary courts adhere to the same procedures and offer the same rights to people as other immigration courts. “In all cases, a well-trained and professional immigration judge considers the facts and evidence, applies the relevant law, and makes an appropriate decision consistent with due process,” he said.
But immigrant-rights advocates and the union representing immigration judges—who are Justice Department employees—say the unique conditions of the tent courts deny migrants due process by depriving them of meaningful access to lawyers or interaction with judges, making the setup essentially a rubber stamp for deportation.
“It’s a system that’s designed in its entire structure to turn people away,” said Laura Lynch, senior policy counsel with the American Immigration Lawyers Association.
The judges union has expressed concern over numerous issues: Judges can’t interact with applicants face-to-face, which the union says is important to assess credibility. Immigration court officials aren’t in the tents, which are operated by U.S. Customs and Border Protection. Judges can’t hand migrants documents directly to ensure they contain no errors. Unlike most U.S. courts, the tents are closed to the public and press.
A Cuban asylum seeker waited in Matamoros to present his documents to the agent who will be escorting him to his immigration hearing.
“The space of the court is supposed to be controlled by the court,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges. “But the tents, we don’t have any control over.”
Most migrants who cross the border near Brownsville are sent to Matamoros, Mexico, just across the Rio Grande, where they live in shelters or tents near the bridge.
They are returned with little more than a sheet of paper stating their first court date and a list of lawyers to contact. But those contacts aren’t very useful because they have either U.S.-based or toll-free phone numbers that don’t function in Mexico.
Of the 47,313 people whose cases were filed between January and September, only 2.3% have legal representation and only 11 have been granted asylum or other legal status, according to the Transactional Records Access Clearinghouse at Syracuse University, which tracks immigration court data.
Pro-bono lawyers who work with these migrants are fearful to travel far beyond the U.S. border into Mexico. Inside the tents, lawyers are typically permitted 15 minutes to meet clients before hearings. In most other U.S. courts, lawyers are free to visit clients, and detention facilities provide more opportunities for meetings.
On two recent days in the tents, migrants appearing alone spent about five minutes each before a judge, while migrants with lawyers took between 20 and 30 minutes each.
“The system is dependent on individuals not finding representation because they can be deported much easier and faster,” said Jeff O’Brien, a California-based immigration lawyer representing several Brownsville clients pro bono. “If everyone had a lawyer, it would essentially come to a halt.”
A U.S. Customs and Border Protection agent checked documents presented by asylum seekers.
Documentation errors are a common hurdle. Applicants’ addresses are often listed on forms as simply “domicilio conocido,” which roughly translates as general delivery, or sometimes a Matamoros shelter that many migrants avoid because they are scared to travel farther into the city.
Tent camp residents also had notices for hearings when courts aren’t open: one at 1 a.m. and another on a Saturday.
It isn’t known how the government notifies these migrants about changes in their cases without valid addresses. Migrants who aren’t at the bridge for hearings are assumed to have abandoned their cases. Government lawyers ask judges to deport absentees—ending asylum requests and barring them from the U.S. for a decade.
Asked about how address discrepancies are handled, a Justice Department spokesman said judges follow the Immigration Court Practice Manual. The manual requires migrants in the U.S. to notify the court of address changes, and in cases where they are detained, it requires the government to notify the court where. Neither scenario applies to migrants in Mexico.
Without lawyers, applicants routinely make paperwork errors—such as submitting documents in Spanish, or documents translated into English without a form certifying the translator is English-proficient—that advocates say they have seen judges use to order them deported.
At a recent hearing in Brownsville, a Honduran woman and her baby daughter appeared before Judge Sean D. Clancy in Harlingen. A CBP officer in Brownsville had faxed the woman’s asylum application to Harlingen, where a clerk handed it to the judge.
A Central American asylum-seeking mother hugged her child on a November morning in Matamoros.
“Are you afraid of returning to Honduras?” Judge Clancy asked the woman. A translator beside him repeated the question in Spanish. “Very much,” came the translated reply.
Judge Clancy looked at her application and noted a different response. “One question here says, ‘Do you fear harm if you return to your home country?’ And you checked ‘no.’”
The woman appeared confused. Judge Clancy told her to return to court with a properly completed application on April 15, when a date for her full asylum hearing would be set.
What a total disgrace and mockery of justice! What do Circuit Court of Appeals judges do for a living if they don’t have the legal skills and courage to stand up for our Constitution and our asylum laws against US Government fraud and abuses like this?
Nobody without a lawyer has any chance in this system! With a representation rate of an astoundingly low 2.3% due to the Trump regime’s intentional obstacles, roadblocks, and refusal to promote and facilitate pro bono representation, this system is nothing less than an unconstitutional and illegal “killing floor” (a reasonable chance to be represented by pro bono counsel is actually a statutory requirement). You don’t have to be much of an Article III Judge to recognize the the systemic fraud and abuse going on here. But, a judge would have to have the courage to stand up to the Trump regime and put a stop to this disgraceful nonsense! Sadly, courage seems to be something in very short supply at the appellate levels of the Federal Judiciary these days.
Thanks Michelle and Alicia for exposing this ongoing parody of justice!
Last March, after Robert Mueller submitted the results of his investigation into Russian interference in the 2016 presidential election and obstruction of justice by Donald Trump and his campaign, but before the world got to see it, Attorney General William Barr sent a summary of the findings to Congress. In it, Barr wrote that the Mueller probe did not come to a conclusion about whether the president had obstructed justice, leading the A.G. to decide on his own not to charge him. Trump, naturally, was thrilled by this assessment, but others, like House Speaker Nancy Pelosi, were not content to take Barr’s word for it, saying, effectively, that Barr was a bootlicking hack who could not be trusted, in light of the fact that the guy literally got the job by sending an unsolicited 19-page memo to the Justice Department in which he called the special counsel’s inquiry “fatally misconceived,” described Mueller’s actions as “grossly irresponsible,” and insisted “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction.”
Pelosi, of course, turned out to be right: Mueller’s report, in fact, found numerous instances of obstruction by Trump that, were Mueller’s hands not tied by Justice Department guidelines that say you can’t indict the president, could have resulted in Trump being charged with a crime, a far cry from Barr’s rosy interpretation of the findings. That didn’t stop Barr from continuing to undermine the almost two-year-long investigation by his good friend, likening it to the birther movement, claiming that, actually, it’s “not a crime” for the president to demand that staffers lie to investigators, and coordinating with the White House to make Trump look good. And now it appears that Barr is still trying to discredit the entire Russia investigation, even if it means going against the word of his own agency, according to the Washington Post:
Attorney General William P. Barr has told associates he disagrees with the Justice Department’s inspector general on one of the key findings in an upcoming report—that the FBI had enough information in July 2016 to justify launching an investigation into members of the Trump campaign, according to people familiar with the matter. The Justice Department’s inspector general, Michael Horowitz, is due to release his long-awaited findings in a week, but behind the scenes at the Justice Department, disagreement has surfaced about one of Horowitz’s central conclusions on the origins of the Russia investigation. The discord could be the prelude to a major fissure within federal law enforcement on the controversial question of investigating a presidential campaign.
Barr has not been swayed by Horowitz’s rationale for concluding that the FBI had sufficient basis to open an investigation on July 31, 2016, these people said…. The Russia investigation was opened after the FBI was told of statements made by a then Trump campaign aide, George Papadopoulos, that the Russians possessed hacked Hillary Clinton emails. Papadopoulos’s alleged comments were key because they were made well before any public allegation that Russian intelligence operatives had hacked the Democratic National Committee. The attorney general has privately contended that Horowitz does not have enough information to reach the conclusion the FBI had enough details in hand at the time to justify opening such a probe…the prospect of the nation’s top law enforcement official suggesting the FBI may have wrongly opened an investigation into a presidential campaign, even after the inspector general announces the agency was justified in doing so, will probably generate more partisan battles over how the Justice Department and the FBI operate.
People familiar with Horowitz’s report told the Post that while it included some criticism of the FBI, it did not agree with Trump’s claim that the investigation was a politically motivated “witch hunt,” an assessment Barr, as Trump’s chief toady, obviously cannot abide. While the special counsel’s probe may seem like ancient history, it is actually a key part of the impeachment inquiry; last month the general counsel for the House of Representatives asked a federal appeals court to grant Congress access to secret grand jury evidence from the Russia investigation, saying that “there is evidence, very sadly, that the president might have provided untruthful answers…. Did the president lie? Was the president not truthful in his responses to the Mueller investigation? The House is trying to determine whether the current president should remain in office. This is unbelievably serious and it’s happening right now, very fast.”
Covering for Trump re: Russia isn’t the only criticism that has been (justifiably!) lobbed in Barr’s direction of late. Democrats were also enraged by the Justice Department’s quick decision not to investigate Trump over his attempt to convince Ukraine to investigate Joe Biden, and telling the acting director of national intelligence he had no obligation to send an “urgent” whistle-blower report to Congress that has become the basis of the impeachment inquiry. “The attorney general has gone rogue,” Pelsoi told CNN in September, adding that “he has for a long time now.”
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Bess doesn’t even get to Barr’s “maliciously incompetent” mismanagement of the unconstitutional Immigration Courts in support of Trump’s racist White Nationalist agenda.
AMEZCUA-PRECIADO v. U.S. ATTORNEY GENERAL, 11th Cir., 12-03-19, published (per curium)
PANEL: BRANCH, FAY and HULL, Circuit Judges.
Maria Amezcua-Preciado, a native and citizen of Mexico, along with her two minor children, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her application for asylum and denying her withholding of removal. The BIA concluded, based on recent precedent from the Attorney General, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group of “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the Immigration and Nationality Act (“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to establish membership in a particular social group. We thus deny Amezcua- Preciado’s petition for review.
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Wow, what an amazingly gutless and disingenuous performance! Complicit Article III courts have become one of the Trump Regime’s key White Nationalist tools for “deconstructing” U.S. immigration, refugee, and asylum laws.
These aren’t legal disagreements; they are a derelictions of ethical and moral responsibilities. Matter of A-B- was a biased, legally incorrect, factually distorted, unethical attack on asylum law by a Sessions, who was not a “fair and impartial adjudicator.” It ignored a generation of well-developed jurisprudence, legal analysis, and overwhelming factual support for recognizing gender-based domestic violence as a basis for asylum.
Matter of A-R-C-G-, overruled by A-B-, represented a broad consensus within the legal community. Indeed, much of the impetus for that decision came from DHS itself, who had been successfully and efficiently applying its principles in Asylum Offices and in Immigration Courts long before A-R-C-G- actually became a precedent. Remarkably, no actual party requested Sessions’s intervention in A-B-; he rejected ICE’s request to vacate his interference and return the case to the BIA for adjudication under A-R-C-G- criteria. Obviously, the fix was on. But, that made no difference to Branch, Fay, and Hull in their disingenuous haste to “roll over” for the White Nationalist agenda.
I hope that when future historians eventually dissect the rancid racism, misogynism, and White Nationalism of the current regime they will fully expose jurists like Branch, Fay, & Hull who used their privileged positions to “go along to get along,” enabling and furthering the regime’s illegal and unethical “war on asylum seekers, migrants of color, and women.”
The president would always like to be the president. And he’s bending the law to his will to do so.
November 27 2019 4:41 PM
It is a Thanksgiving tradition to spend time thinking about what one is thankful for; a healthy practice that reminds us to see the world in a positive light. Gratitude is good for us and we should not take it for granted. This year, though, I feel compelled to spend at least a bit of time focusing not only what I am thankful for, but on what I am freaking out about. And the thing that concerns me greatly these days is simple: The president seems to have no intention of leaving office and we seem to have no meaningful plan to address that.
The growing hysteria about imaginary past Ukranian election interference, a ludicrous impeachment defense, will be used to deflect from the emphatically certain future Russian election interference (as well as interference from other nations who reasonably want in on the fun). The Mitch McConnell-dominated Senate has declined to do anything to protect against that certainty and instead is building a judiciary that will permit it. Please consider, as well, that the geniuses among us who claim that we should ignore Trump’s effort to conscript Ukraine into working on his 2020 presidential run, and just defeat him roundly at the polls, are forgetting that Donald Trump’s entire raison d’etre, his past and future destiny, is to manipulate presidential elections in ways that preclude his round defeat at the polls. That is why he worked—as we now know—with Roger Stone to distort the outcome of the 2016 elections, it is also why he withheld almost $400 million in appropriated aid to Ukraine this summer. Insisting that we will let the voters decide this matter in a free and fair election in 2020 has to be the Lucy-football-est move ever, in a three-year festival of Lucy-footballing.
Don McGahn thinks someone else is responsible for taking care of all this, as, evidently, does John Bolton. Robert Mueller made the same mistake last spring, when he decided it was Congress’s responsibility to act on what he had found. And so, to be frank, did most of the impeachment witnesses, many of whom only came forward to corroborate the whistleblower’s anonymous report, and some of whom only came forward only pursuant to a subpoena. Everyone seems to assume vast quantities of courage in other people that they cannot seem to find in themselves. Yet somehow, our greatest worry in the coming days will be how to remain civil with one another over a large bird and its cute little cranberry accessories. The president believes that he is above the law and has foreclosed any attempt to prove otherwise. The president seems unable to conceive of himself losing an election. The president is counting on all of us to merely hope that something somewhere gets done about all this stuff at some point, but to never actually do anything ourselves beyond passing the stuffing around. This year, what I am most thankful for is the people who are trying to do that something themselves.
I’m most thankful for all of my wonderful, dedicated colleagues in our Roundtable of Former Immigration Judges, an important “brigade” of the New Due Process Army. The NDPA does more than “merely hope that something somewhere gets done about all this stuff at some point.”
We’re out there leading “the Resistance” (yes, Billy Barr, not everyone is a sleazy sycophant like you) and fighting the forces of White Nationalism, xenophobia, racism, and “legal nihilism” every day in every possible way! Thanks for all you do my friends and colleagues for America, American justice, and to see that the most vulnerable among us get the rights to which they are legally entitled but which are being denied by a fundamentally dangerous and dishonest regime assisted by complicit courts.
Due Process Forever; Legal Nihilism & Complicit Courts Never!
My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:
Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.”The written decision of the IJ, Julie L. Nelson in SF, is also included.
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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”
And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!
What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?
BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.
Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.
Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”
It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!
With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.
Help the New Due Process Army fight for a better, more just, future for America and the world.
Immigration court backlog has nearly doubled under Trump
November 25, 2019 05:00 PM EST
The nation’s backlog of active immigration court cases has surpassed the 1 million mark and has nearly doubled since President Donald Trump took office, a new analysis shows. In Ohio, 12,851 cases are pending in Cleveland’s immigration court, which includes Columbus-area cases. That’s up from 3,295 in 2009.
While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.
The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.
“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.
Nationwide, the backlog has almost doubled, from 542,411 pending cases when President Donald Trump took office in January 2017 to just over 1 million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.
In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.
Hearings are scheduled in the Cleveland court through Dec. 30, 2022.
Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.
Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.”
“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.
Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s immigration court isn’t the worst in the country. In areas such as New York, Chicago and Philadelphia, immigrants are waiting an average of 1,450 days, or just under four years, to see a judge.
Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.
“The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention,” the TRAC report states. “This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.”
Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country illegally a priority for deportation. The norm had been to prioritize those who had committed crimes.
“It is a senseless waste of taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus immigration lawyer, told The Dispatch in an email.
The backlog has grown despite the Trump administration having given the immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.
The nation has 442 immigration judges, according to TRAC. Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who have left have expressed feeling like the Trump administration doesn’t allow them to do their jobs properly while adding quotas and micromanaging their work.
Each judge has about 2,000 cases, according to TRAC.
In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than once a month.
Hiring more judges hasn’t fixed the backlog, Bittner said.
“It is very frustrating because justice delayed is justice denied, and while foreign nationals wait years for the adjudication of their cases, they are putting down roots here and having families, which makes removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.
She said some of her clients are grateful for the wait because they have more time to build a life here. Others, however, are frustrated, Bittner said, because they feel that they are constantly in limbo, and once they’ve built a life, it could all come crashing down when their day in court finally arrives.
A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.
“It just seems to be getting worse,” Bittner said.
Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!
And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”
It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.
The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!
We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!
AN UNCONSTITUTIONAL “COURT” SYSTEM WHERE POLITICOS & PROSECUTORS DETERMINE JURISDICTION CONTINUES TO DISPENSE INJUSTICE IN LIFE OR DEATH MATTERS AS FECKLESS ARTICLE III COURTS TANK & AN EMBOLDENED ADMINISTRATION COMMITS OVERT HUMAN RIGHTS, STATUTORY, AND CONSTITUTIONAL VIOLATIONS BY RETURNING ASYLUM APPLICANTS TO UNSAFE COUNTRIES WITHOUT FUNCTIONING ASYLUM SYSTEMS!
Alexandra, VA. Nov. 21, 2019. It’s one of the most elementary principles in law: a court has jurisdiction to determine its own jurisdiction. But, in the so-called U.S. Immigration Courts, where individuals are often essentially on trial for their lives, sometimes without the benefit of legal counsel or time to prepare, Department of Justice politicos and DHS prosecutors tell the Immigration Judges what jurisdiction, if any, they possess.
Thus, in a memorandum issued on November 19, 2019, the Director of EOIR, a non-judicial “mouthpiece” for DOJ politicos that run these unconstitutional administrative “courts,” instructed Immigration Judges on the requirements of clearly fraudulent “Safe Third Country Agreements” put in place by the Administration to deter, punish, and in some cases likely kill asylum applicants in dangerous, non-statutorily-qualifying countries, without credible asylum systems. He told them how and when they could exercise jurisdiction over certain cases and when they only had jurisdiction if DHS prosecutors determined in their sole discretion that it was “in the public interest.”
Remarkably, in the face of a statute that clearly gives individuals a right to apply for asylum in the U.S. “regardless of status,” the DHS now will determine whether in the exercise of their prosecutorial discretion an individual will actually be allowed to apply for asylum before an Immigration Judge. And, that clearly won’t happen often, if at all.
Otherwise, under blatantly fraudulent “Safe Third Country” agreements, newly arriving asylum seekers will be “orbited” to three of the most dangerous countries in the world — Guatemala, Honduras, & El Salvador — that don’t even have functioning asylum systems. Indeed, these failed states, overrun by gangs and cartels, are among the world’s most notorious “sending counties” for asylum seekers! How would countries that can’t even provide minimal protection for their own citizens and without functional asylum systems possibly provide a safe opportunity for individuals to apply for asylum? Clearly, they won’t.
Of course, the Administration has put out a litany of outrageous lies in support of its fraud. One of the most patently absurd claims is that this illegal scheme will offer asylum applicants “protection in the area” without making the “dangerous journey.”
But, there is no chance that some of the most corrupt and inept governments in the world, unable to protect their own citizens, would be able to offer reasonable protection to asylum seekers from third countries. Some of the victims of the Trump Administration’s racist malfeasance probably won’t survive long enough to even make their claims. And, there isn’t any credible process for them to apply anyway. It took the U.S. decades to develop the asylum system that Trump has now dismantled. The idea that poor countries with no expertise and resources to devote to the process will be able to adjudicate asylum claims under a comparable “fair” system doesn’t pass the “straight face test.”
Beyond that 1) the hapless individuals being returned (with no access to counsel) have already made the “dangerous journey;” and 2) the gangs and cartels operate with government acquiescence, cooperation, and/or impunity throughout the small area of the Northern Triangle. Therefore, individuals are likely to be in danger and targeted for harm, kidnapping, extortion, or all three, the minute they set foot in any of these failed states.
That’s certainly been the experience of those returned to Mexico under the dishonestly named “Migrant Protection Protocols,” more accurately known as the “Let ‘Em Die in Mexico Program.” So outrageously unlawful has this program been that some Asylum Officers and Immigration Judges have resisted or actually quit over being required to engage in illegal acts and human rights violations.
Yet, a complicit Ninth Circuit Court of Appeals has allowed these deadly attacks on our system of justice and human dignity to continue. Perhaps the “lowlight” of that court’s judicial malfeasance has been the well documented cases of DHS officials issuing fake hearing notices to their victims. Just imagine if those abuses happened to the spouse, son, or daughter of one of the these feckless judges! Judges who place themselves above justice to the humanity they serve are a systemic problem.
There’s also the matter of no transparent procedures being in place to determine what will happen to these individuals and where they will be where housed once “orbited.” Finally, even if against the odds someone actually got asylum in a Northern Triangle country, they clearly would not be “protected” by countries incapable of offering protection to most of their citizens.
By comparison, the one pre-existing “Safe Third Country” agreement with Canada, a country that actually appears to qualify under the statute, bears no resemblance whatsoever to the broadly worded fraudulent agreements with the Northern Triangle countries. The Canadian agreement is carefully circumscribed with many protections and qualifications and applies to only a small number of individuals annually.
By contrast, the fraudulent agreements with the Northern Triangle potentially apply broadly to individuals from countries like Cuba and Haiti who have never passed through the Northern Triangle and have no connection whatsoever with those countries. That’s because Canada is a real country that negotiated at arm’s length with the U.S. By contrast, the failed states of the Northern Triangle had these bogus agreements shoved down their throats with threats to cut off aid and assistance by corrupt officials like “Big Mac With Lies” McAleenan acting on Trump’s and Miller’s instructions.
But, complying with statutory requirements and protecting asylum seekers under the law never has been an objective of the Trump Administration. Killing and mistreating asylum seekers as a “deterrent” and then feeding the results to a White Nationalist base as “success” is the sole objective of these corrupt programs.
Nobody, and I mean nobody, who understands and cares about honest implementation of U.S. refugee and asylum law could have contemplated in their worst nightmares that we would be discussing the Northern Triangle countries as “Safe Third Countries.” Yet, here we are.
But, perhaps the most amazing and discouraging fact is that in the face of such blatant public fraud and illegal behavior, over and over in disregarding asylum laws and Constitutional requirements, the Article III Federal Appellate Courts, all the way up to the Supremes, have failed to consistently stand up to the dishonest thugs in the Trump Administration who are running roughshod over our asylum laws and our Constitution. They daily ignore the clear unconstitutionality of an Immigration “Court” system that denies individuals the “fair and impartial” adjudicators to which the are entitled under the Fifth Amendment. In the process they are dehumanizing all of us.
The statute purports to bar judicial review of individual claims denied under the “Safe Third Country” exception. But, surely some smart member of the New Due Process Army can come up with a theory to challenge the Constitutionality of such blatantly dishonest and overtly fraudulent agreements that subvert the statute and clearly deny Due Process to individuals within the jurisdiction of the U.S.
And, let’s not forget the Congress where all constructive immigration reforms are blocked by a GOP Senate. In a rational world, Congress would have acted by veto-proof margins to withdraw the Executive’s authority to enter into “Safe Third Country Agreements” in light of the Administration’s well-publicized plans to clearly ignore and abuse the Congressionally-mandated standards. They also would have created independent Article I Immigration Courts outside of the Executive Branch. But, that would be a Congress other than one beholden to today’s GOP and their slavish devotion to Trumpism.
Those involved in negotiating, implementing, enabling, and defending these fraudulent agreements are committing major human rights violations. While there might currently be no ways of holding them legally and personally accountable, the the truth eventually will come out. History will be their judge. And, when all the ugliness, dishonesty, racism, cowardice, and dereliction of legal duties are finally exposed, I wouldn’t want to be in their shoes or the shoes of their descendants who will have to live with the eternal shame of those who abuse and deny the humanity and legal rights of the most vulnerable among us.
Due Process Forever!
Here’s the EOIR’s bogus “Guidance” for those who have the stomach to wade through it:
Heather Cox Richardson Historian Professor, Boston College
American Historian Heather Cox Richardson writes in her daily e-mail for today:
A friend read the proofs for me, and asked why I had not mentioned the Brooks Brothers Riot. I had no good answer, so today I went back to the sources.
For those of you who don’t remember everything that happened in those crazy days when we were all trying to figure out what the heck had happened in the 2000 election, the Brooks Brothers Riot was made up of a bunch of Republican operatives, many of whom had flown in from other states, who gathered on November 22, 2000 at the Miami-Dade polling station where Florida officials were attempting to recount the confusing ballots, to insist that the Democrats were trying to steal the election. Their noise and outrage helped to get the recount called off. As I was reading through the articles about the riot, the name Roger Stone jumped out at me. That name meant nothing to me in 2000, but it sure does today.
This is the same Roger Stone who advised the Trump campaign and who has just been convicted for lying to Congress about his connections to Wikileaks before the 2016 election. Wikileaks worked to hurt Democratic presidential nominee Hillary Clinton and promote Donald Trump by dumping emails that Russia had hacked from the Democratic National Committee. Stone is a no-holds-barred political operative who got his start on the 1972 reelection campaign of Richard Nixon, whose face is tattooed on Stone’s back (no, I’m not kidding) and who, after Nixon’s fall, went on to start a political consulting firm with Paul Manafort, Trump’s campaign chairman from June to August 2016 (who is also now a convicted felon), and Lee Atwater, the man behind the viciously racist Willie Horton ad that sank Democratic candidate Michael Dukakis in 1988 (Atwater apologized for his actions as he was dying).
At the time of the Brooks Brother’s Riot, Stone claimed he was there “as a volunteer,” and “knew nothing about the protesters other than the fact I approve of Republicans expressing their First Amendment rights.”
This was a lie. In reality, Stone was a key operative, eavesdropping on the Democratic recount team with a walkie-talkie and determined to undermine the recount to get Bush in office, regardless of the popular vote or the real outcome in Florida. “What I admire about Nixon was his resilience,” he later told a reporter, “It’s attack, attack, attack. Al Gore thought the recount was a high-minded policy debate. He didn’t understand that it was an extension of a war, of a political campaign.”
That comment jumped out to me, just as Stone’s name had. That’s it, isn’t it? While the rest of us believe in the rules of democracy, people like Stone and Manafort see political engagement as a war in which winning is everything. It is worth lying, cheating, and stealing, because the goal is not better government, the goal is to win, and then to use that victory to reward your friends and hurt your enemies. After working for Ronald Reagan, George H. W. Bush, and George W. Bush, Stone and Manafort advised dictators. Then they turned their hands to the Trump campaign. Their approach to politics appears by now to be embedded in today’s Republican Party. Jennifer Rubin, a conservative writer at the Washington Post, had a story today entitled “The Party of Lying Liars,” in which she laid out a litany of Republican whoppers, designed solely to appeal their base and thus stay in office.”
As we begin the second Bush administration, let’s take a moment to reflect upon one of the most historic episodes of the 2000 battle for the White House — the now-legendary “Brooks Brothers Riot” at the Miami-Dade County polling headquarters.
This was when dozens of “local protesters,” actually mostly Republican House aides from Washington, chanted “Stop the fraud!” and “Let us in!” when the local election board tried to move the re-counting from an open conference room to a smaller space.
With help from their GOP colleagues and others, we identified some of these Republican heroes of yore in a photo of the event.
Some of those pictured have gone on to other things, including stints at the White House. For example, Matt Schlapp, No. 6, a former House aide and then a Bush campaign aide, has risen to be White House political director. Garry Malphrus, No. 2 in the photo, a former staff director of the Senate Judiciary subcommittee on criminal justice, is now deputy director of the White House Domestic Policy Council. And Rory Cooper, No. 3, who was at the National Republican Congressional Committee, later worked at the White House Homeland Security Council and was seen last week working for the Presidential Inaugural Committee.
Here’s what some of the others went on to do:
No. 1. Tom Pyle, who had worked for Rep. Tom DeLay (R-Tex.), went private sector a few months later, getting a job as director of federal affairs for Koch Industries.
No. 7. Roger Morse, another House aide, moved on to the law and lobbying firm Preston Gates Ellis & Rouvelas Meeds. “I was also privileged to lead a team of Republicans to Florida to help in the recount fight,” he told a legal trade magazine in a 2003 interview.
No. 8. Duane Gibson, an aide on the House Resources Committee, was a solo lobbyist and formerly with the Greenberg Traurig lobby operation. He is now with the Livingston Group as a consultant.
No. 9. Chuck Royal was and still is a legislative assistant to Sen. Jim DeMint (R-S.C.), a former House member.
No. 10. Layna McConkey Peltier, who had been a Senate and House aide and was at Steelman Health Strategies during the effort, is now at Capital Health Group.
(We couldn’t find No. 4, Kevin Smith, a former GOP House aide who later worked with Voter.com, or No. 5, Steven Brophy, a former GOP Senate aide and then at consulting firm KPMG. If you know what they are doing these days, please e-mail shackelford@washpost.comso we can update our records.)
Sources say the “rioters” proudly note their participation on résumés and in interviews. But while the original hardy band of demonstrators numbered barely a couple of dozen, the numbers apparently have grown with the legend.
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How to build a great GOP resume!
Interestingly, “Rioter # 2,” Garry D. Malphrus (face partially obscured in the photo) went on to become a U.S. Immigration Judge and later an Appellate Immigration Judge on the Board of Immigration Appeals (“BIA”), supposedly the highest administrative tribunal in immigration (although it now functions within the Department of Justice more or less as an extension of DHS Enforcement and Stephen Miller’s White Nationalist, anti-immigrant agenda).
Judge Malphrus was recently named the Acting Chair of the BIA by Billy Barr. Although Barr is a notorious “law enforcement hard liner,” I guess his strong commitment to “law and order” only goes so far.
Got to focus on the “real threats” to our democracy: the Dreamers and other hard working, law abiding, tax paying long-time American residents who are propping up our society and our economy so that Barr, Stone, Trump, and the former rioters can “live the good life.” And certainly, insuring the death or abuse of as many asylum applicants and kids as possible should be high on the list of worthy expenditures of our taxpayer dollars and moral capital.
The moral: Liberals get in trouble for rioting; conservatives get promoted!
Meanwhile, who knows? Could the Supremes be the next stop for Judge Malphrus?
Today’s biggest story set the scene for news that continues to develop about the Ukraine scandal.
The big story, in terms of its ability to frame the crazy events coming at us at top speed, happened last night, when Attorney General William Barr gave a speech to the Federalist Society, a group of conservative and libertarian lawyers who argue for an originalist interpretation of the Constitution. The conviction of members of the Federalist Society that courts should not do anything that is not listed in the original Constitution makes them great friends to business and to white men, since they focus on the protection of property and deny that laws can regulate business, provide a basic social safety net, or protect minority or women’s rights. The Federalist Society organized in 1982 to push back against what its members felt was an activist court system that tried to reorganize society from the bench. It has been extraordinarily successful in taking over the courts: currently five members of the nine-member Supreme Court are current or past Federalist Society members: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his speech, Attorney General William Barr claimed he was going truly to be an originalist, and explained by taking American history back to its roots. In contrast to every single American historian in, well, American history, Barr argued that Americans had rebelled not against King George III in 1776, but rather against Parliament. What the Founders feared, he said, was not a strong executive, but rather a strong Parliament. (You can tell where this is going, right?) Barr was setting up the idea that Congress has grown far too strong lately (in fact, virtually every scholar will tell you that it is the Executive that has grown terribly strong since 1981) and that it is badly hampering the president’s ability to do his job. The president should be able to act on his own initiative, and not be checked by either congressional or judicial oversight, Barr insisted, in a theory known as that of the “unitary executive.”
Barr did not stop there, though. He went on to blame “The Resistance” for sabotaging the Trump administration, and claimed that its members were “engaged in a war to cripple, by any means necessary, a duly elected government.” More, he claimed “the Left” is “engaged in the systematic shredding of norms and the undermining of the rule of law.” Conservatives, he said, were at a disadvantage against progressive’s “holy war” because they “have more scruple over their political tactics” especially when facing “a hyper-partisan media.” (You might want to reread those last two sentences.)
Richard Painter, who was George W. Bush’s ethics lawyer, called this a “lunatic authoritarian speech.” Attorneys General are supposed to be non-partisan, and Barr lumped all opposition to Trump as the dangerous far left. The “Left,” in America, generally refers to those few people who advocate for communism—a system in which the government owns and controls all industries and businesses– or anarchy, a system in which there is no central authority at all. It’s actually a pretty small group. But Barr, and other recent Republicans, have included in “the Left” everyone who believes that the government has any role to play in regulating business, providing a basic social safety net, and promoting infrastructure, all those things the Federalist Society opposes. In fact, most of us, regardless of whether we vote Republican or Democratic, want some basic regulations, social welfare programs, and infrastructure development.
But now the Attorney General, who is charged with overseeing our justice system, has declared that anyone standing in the way of Trump is not just a member of “the Left” but also is waging war against America. Painter is quite right: this is the language that enables a leader to imprison people he considers his enemies.
Barr is not saying all this in a vacuum. More news dropped today about the Ukraine scandal, filling in the lines we already suspected. Congress released transcripts today from Tim Morrison and Jennifer Williams, both of whom were deeply involved in the Ukraine mess and were on the July 25 call between Trump and Zelensky. A long-time career official in the State Department, Morrison replaced Fiona Hill as the Senior Director for Russia and Europe in July 2019. Williams is another long-standing career officer in the State Department. Since April 2019, she has been the Special Adviser for Europe and Russia for Vice President Mike Pence. Morrison said that Ambassador to the European Union Gordon Sondland made it clear that aid was being withheld until there was an announcement about an investigation into Burisma, the company on whose board Hunter Biden sat.
This jibed with the opening statement of David Holmes, the political counselor at the Embassy in Kyiv, who testified for seven hours yesterday behind closed doors. Holmes was an eye-witness to the efforts of Trump, his lawyer Rudy Giuiliani, and Ambassador to the European Union Gordon Sondland, to pressure the new Ukraine president Volodymyr Zelensky into announcing an investigation into Burisma, the company on whose board Hunter Biden sat. Holmes’s opening statement was explosive. It was not only first hand, but also it tied Trump directly into the efforts, and it made very clear that the administration was demanding the announcement of an investigation before it would release the money Congress had appropriated for Ukraine’s fight against Russian incursions. Holmes also said that he had reported what he had heard to John Eisenberg, Legal Advisor to the National Security Council, the same man to whom Lt. Col. Alexander Vindman had reported the July 25 call, and, once again, Eisenberg had done nothing. (Eisenberg is refusing to honor a subpoena to testify.)
Then, CNN dropped the story that at last year’s White House Hanukkah party Lev Parnas and Igor Fruman met privately with Trump and Giuiliani. After the meeting, Parnas told two people that the president had given him a secret mission to pressure the Ukraine government to investigate Joe and Hunter Biden. The Wall Street Journal reports that in February, Parnas and Fruman met with the Ukraine President at the time, Petro Poroshenko, and his Prosecutor General Yuriy Lutsenko, offering to invite Poroshenko to a White House State dinner if he publicly announced an investigation. As I wrote here two days ago, this would have boosted both Poroshenko’s and Trump’s reelection campaigns. In March, Lutsenko smeared U.S. Ambassador to Ukraine Marie Yovanovitch to an American reporter and Sean Hannity ran with the story on his show, but the scheme fell apart when voters elected Zelensky instead of reelecting the corrupt oligarch Poroshenko. Then they had to scramble to come up with a new plan, and the whole ham fisted Ukraine scandal took off.
The Ukraine scandal is fleshing out, and it is truly astonishing that there is not more evidence that can be read in Trump’s favor. This increasingly just looks like a shakedown that weakened national security to help Trump rig the 2020 election. Meanwhile, in northern Syria, where Turkish and Russian troops moved in when we moved out, the Russians boasted yesterday that they have now occupied a former U.S. air base.
Trump spent several hours today at Walter Reed hospital. The visit was unexpected and unannounced, but the White House said he had decided to have portions of his annual physical done three months early.
Attorney General Bill Barr Is Getting Roasted for His Outrageous Speech Blasting Progressives
As the impeachment hearings continued, Attorney General Bill Barr on Friday trash-talked Democrats for attempting to “drown the executive branch with oversight demands,” saying they were working for political gain without thinking of the consequences.
“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Barr told a room of attorneys at the annual gathering of the Federalist Society, a conservative legal group that has been influential in determining President Donald Trump’s nominees for federal judges.
The remarks about Democrats ignoring the rule of law were especially ironic because they came a mere hours after Roger Stone, one of Trump’s previous advisers, was convicted on all counts for lying to Congress during its probe into Russia’s interference in the 2016 election. The attorney general’s speech also came on the second day of presidential impeachment hearings examining allegations that Trump attempted to interfere in the 2020 elections by asking Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter.
Barr criticized Democrats for launching a “holy war” and using “any means necessary to gain momentary advantage,” while he said conservatives “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
. . . .
Barr reportedly received a standing ovation, but outside the halls of the Federalist Society, his remarks sparked outrage and intensified calls from the left to impeach not only the president, but the attorney general himself. Others were quick to roast Barr for his statements. “Bill Barr is the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases,” Richard Painter, a former White House ethics counsel, tweeted.
. . . .
“Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer,” Rep. Bill Pascrell (D-N.J.) tweeted Saturday morning. “Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”
. . . .
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Read Samantha’s complete article which includes the full the two of a number of tweets at the link.
Hours after a new witness testified in the House’s latest impeachment hearing on Friday, Attorney General William Barr railed against Democrats for declaring a “war of resistance against this administration.”
In a speech before the conservative Federalist Society, Barr rebuked lawmakers for probing President Donald Trump’s potential power abuses, suggesting their efforts are illegitimate.
“The sheer volume of what we see today ― the pursuit of scores of parallel investigations through an avalanche of subpoenas ― is plainly designed to incapacitate the executive branch, and indeed is touted as such,” Barr said. “The costs of this constant harassment are real.”
Barr’s portrayal of oversight as harassment echoes Trump’s repeated claims that he is the victim of a partisan “witch hunt” rather than the subject of a justified inquiry into his dealings with Ukraine, which remain at the heart of Democratic-led impeachment proceedings.
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law,” Barr added. “This highlights a basic disadvantage that conservatives have had in contesting the political issues of the day.”
President Trump is convinced he has the “absolute right” to do anything from asking other countries to investigate his political opponents to pardoning himself. But he couldn’t possibly tell you why — aside from his innate conviction that “when you’re a star, they let you do it” — you can get away with anything. Enter Attorney General William P. Barr to put a pseudo-intellectual gloss on Trump’s authoritarian instincts. In a Friday night speech to the Federalist Society, Barr gave a chilling defense of virtually unlimited executive authority.
Barr’s wrongheaded assumption was that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government.” His view faithfully reflects the conservative consensus of the 1970s when he was a CIA analyst and a law student. Few serious analysts share that view today at a time when the president claims the authority to kill suspected terrorists anywhere in the world without any judicial oversight. In fact, conservatives decried President Barack Obama’s tendency to rule by fiat — for example, in protecting “dreamers” from deportation or reaching a nuclear agreement with Iran that wasn’t submitted for Senate ratification.
Trump has now taken rule-by-executive-order to the next level by declaring a “state of emergency” to spend money on his border wall that Congress refused to appropriate. Trump has also misused his authority in myriad other ways, including obstructing justice (as outlined in a special counsel report that Barr deliberately mischaracterized) and soliciting a bribe from Ukraine to release congressionally appropriated military aid.
Yet, to hear Barr tell it, Trump is somehow denied power by the nefarious “Resistance.” Barr decried Trump critics who do not view “themselves as the ‘loyal opposition,’” but rather “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
Earth to Barr: Trump does not treat his critics as “the loyal opposition.” He calls them “human scum,” “traitors” and “the enemy of the people,” using the language of dictators. And it is Trump and his toadies — not his opponents — who are “willing to use any means necessary to gain momentary advantage.”
Barr went on to blame the “Resistance” for Trump’s failure to get more nominees confirmed. The real problem is Trump’s incompetence and his preference for “acting” appointees to dodge the constitutional requirement to seek the Senate’s “advice and consent.” (Trump has not nominated anyone for nearly 20 percent of the top federal jobs.) If Barr wants to find a real abuse of the confirmation process, he should talk to Merrick Garland.
As devoid of self-awareness as his master, Barr whines about “the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas.” He conveniently forgets that Republicans tried to impeach President Bill Clinton for lying about sex and spent years probing the Benghazi, Libya, attack in a failed attempt to blame Hillary Clinton. Trump is stonewalling congressional subpoenas at an unprecedented rate, forcing Congress to seek judicial assistance to enforce legitimate requests for documents and witnesses. But Barr denies that the courts have any right to “resolve … disputes” between the executive and legislative branches — effectively allowing the president to act like a king.
The attorney general went on to rail against judicial review of administration actions such as “the travel ban.” This was ultimately upheld by the Supreme Court after the administration rewrote the initial versions, which constituted clear discrimination on religious grounds. Yet Barr is still aggrieved that the courts dared “to inquire into the subjective motivation behind governmental action” — i.e., to look at Trump’s own words about banning Muslims rather than accept the administration’s disingenuous explanations.
Barr blamed the courts and the president’s critics for the fact that so many administration actions have been challenged in court. The truth is Trump has nobody but himself to blame. Many of the lawsuits accuse the administration of violating the Administrative Procedure Act, which the executive branch can comply with simply by showing that its actions are not “arbitrary and capricious.” This is an incredibly low standard, which is why the normal “win rate” for the government in such cases is about 70 percent. According to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate is less than 7 percent.
Trump likes to blame such setbacks on “Obama judges,” but many of the judges ruling against him are Republican appointees. Chief Justice John G. Roberts Jr., for example, wrote the 5-to-4 decision in June in which the Supreme Court blocked Trump’s attempt to include a citizenship question on the 2020 Census.
“In this partisan age,” Barr sanctimoniously concluded, “we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” He is right, but not in the way he intended. The real threat to “our Constitutional structure” emanates not from administration critics who struggle to uphold the rule of law but from a lawless president who is aided and abetted in his reckless actions by unscrupulous and unprincipled partisans — including the attorney general of the United States.
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Mary Papenfuss Contributor HuffPost
Finally, let’s hear from Mary Papenfuss, also at HuffPost:
Attorney General William Barr’s latest extreme defense of Donald Trump has triggered a wave of calls for his impeachment — and disbarment.
Richard Painter, the former chief White House ethics attorney in the George W. Bush administration, tweeted that Barr’s remarks Friday before the conservative Federalist Society were “another lunatic authoritarian speech” amid an impeachment investigation into the president. He claimed that Barr — a member of the conservative Catholic society Opus Dei — is “the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases.”
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Read the rest of Mary’s article at the link.
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Somewhat “below the radar screen:” Barr’s repetition of Session’s blatantly unethical performance by acting as a “quasi-judicial decision maker” in Immigration Court cases where he clearly has both an actual and apparent bias in favor of a party, the DHS, and against another party, the individual migrant, particularly any asylum seeker.
Obviously, viewed through Barr’s perverted historical lens, we’ve made some seriously wrong moves.According to Barr’s interpretation, we should have allied ourselves with Hitler during World War II. Now, there’s a guy who understood the concept of the “Unitary Executive.” And, he sure knew how to deal with opposing legislators, “the resistance,” and others who were “enemies of the state” or of “inferior stock.” Why on earth would we have aligned ourselves with, and helped rebuild, the noxious parliamentary democracies of the West?
One of our allies, Stalin, did actually demonstrate the wonderful power of the “Unitary Executive” — talk about a guy who WAS the State and annihilated all opposition, real and imagined! He certainly would have known what to do with subversives who preached “impeachment” under the Constitution!
But, concededly, Stalin’s godless communism doesn’t fit in well with Barr’s Catholic Christian theocracy (minus, of course, the social justice teachings of Christ and the Catholic Church). Hitler’s pure Aryian Christian superiority was a much better fit with Barr’s historical outlook.
Of course, according to the Barr view, the seminal figure in Republicanism, Abe Lincoln, erred by not aligning himself with Jeff Davis and the Confederacy. Davis certainly knew how to operate without much legislative accountability. And the founders of the Confederacy also possessed Barr’s superior understanding of the relationship between the State and the Divine: “establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God.”
Sure, easy to believe that God was always a big fan of enslavement, rape, brutality, white privilege, and theft of services from enslaved African Americans, who also happened to be believers in God. Fits right in with Barr’s dehumanization of Hispanic workers, trashing of LGBTQ Americans, denial of rights to asylum seekers, threats to political opponents, and war on Hispanic Americans who have the audacity of wanting to vote and live peacefully in their communities without being terrorized by DHS enforcement.
George Washington, who wrongly refused to install himself as either King or “President for Life” was, according to Barr’s historical perspective, a dangerous wimp who diminished the potential powers of the “Unitary Executive.”
Undoubtedly, our Founders had their flaws. After all, the Constitution not only enshrined the dehumanization of African Americans, who had actually made the success and prosperity of the American Republic possible, but also excluded the majority of inhabitants from political participation.
But, unlike Barr and his fellow “originalists,” our Founders were largely persons of vision and good will who had enough self awareness and humility to see a better and more dynamic future. They would certainly be shocked and dismayed to find out that rather than viewing our Constitution rationally, as a blueprint to be built upon for a better, more inclusive, more tolerant future, two plus centuries later, individuals like Barr holding supposedly responsible positions under our Republic, would be mindlessly and immorally urging us never to escape the limitations and mistakes of our distant past.
Disturbingly unqualified as he is to serve as our Attorney General, Barr does illustrate the moral and legal bankruptcy of the “fake doctrine” of “originalism.” It’s actually an intellectually indefensible excuse for an empowered, largely White, predominantly male, minority to exclude the majority of America’s inhabitants and their hopes and dreams from full participation in our democracy. It’s as ugly and dishonest as Barr’s own tenure as Attorney General.
Republican lawmakers seem to be having self-esteem issues.
The legislature, after all, is an equal branch of government with constitutionally granted powers. Lately, nearly all of those powers have been siphoned off by the president and his team of unelected bureaucrats. Yet, again and again, GOP lawmakers meekly submit to this constitutional castration.
To wit: Congress’s power of the purse? Gone. Regardless of how much money Congress appropriates for, say, a border wall or military aid to Ukraine, President Trump has made clear that he’ll ignore the number and pencil in his own.
Congress’s power to regulate commerce with foreign nations? Hijacked by a president who cites bogus “national security” rationales to impose tariffs whenever he likes.
Congress’s duty to “advise and consent” on major appointments? Cabinet and other senior government posts that require Senate confirmation have been atypically littered with “acting” officials instead. In fact, while immigration is ostensibly the president’s signature issue, Trump hasn’t had a single Senate-confirmed director of Immigration and Customs Enforcement since he took office. And though Democratic lawmakers may complain, nothing will change as long as Republicans control the Senate.
Which brings me to the most significant power Trump has stripped from Congress: its lawmaking authority. This is best illustrated by the administration’s actions basically rewriting immigration law wholesale, with nary a peep from GOP legislators.
Sure, on some immigration matters, Congress has relinquished its responsibilities, effectively giving Trump the ability to contort immigration policy as he sees fit.
Consider the “dreamers,” the young immigrants brought here as children who know no other country than the United States. They have long been in a legal limbo. Congress could resolve that limbo swiftly and easily by granting the dreamers permanent legal status and a pathway to citizenship. Thiswould have the support of majorities of voters from both parties, and the Democratic-controlled House has already passed such legislation.
Meanwhile, lawmakers in the GOP-controlled Senate wrung their hands and watched helplessly from the sidelines as Trump announced his decision to kill the Obama-era program that protects the dreamers from deportation. Based on a hearing this week, the Supreme Court appears poised to uphold the president’s decision. Yet, despite claiming to care about the issue, Republicans remain unwilling to act.
Similarly, Congress long ago gave the president authority to set the annual cap on refugee admissions. Not surprisingly, if disappointingly, the Trump administration has used that authority to ratchet the ceiling down to a record low of 18,000. For context, during President Barack Obama’s last year of office, the ceiling was 110,000.
But there are other areas of immigration law on which Congress has acted, definitively and clearly, with legislative language that leaves little room for maneuvering by the executive. The Trump administration has flouted these laws anyway.
Take asylum law.
“Refugees” and “asylum seekers” both refer to immigrants fleeing violence or persecution, but, technically, “refugees” apply for sanctuary while still abroad, and asylum seekers apply while in the country of their destination. Unlike with refugeeadmissions, there are no legal caps on the number of people who may qualify for and receive asylum. The law does not allow the executive branch to set them, either.
But the Trump administration has effectively set its own limits.
Last year, for instance, the Trump administration tried to ban people from applying for asylum if they crossed between ports of entry — as most asylum seekers are now forced to do, because the administration has severely throttled (or “metered”) the number of people who may apply through a given port of entry per day.
This “asylum ban” was blocked by the courts — because Congress has explicitly said asylum seekers can apply whether or not they entered the United States “at a designated port of arrival.”
“The law is crystal, crystal clear on this,” says Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
With virtually no pushback from Republicans in Congress, Trump administration then implemented a sort of asylum ban 2.0. This one disqualifies asylum seekers who passed through another country on their way to the United States without first applying for asylum there. A separate legal challenge — one among many — is now working its way through the courts.
A host of other changes designed to serve as a backdoor limit on asylee admissions have also been announced in recent weeks. Last week, the administration announced a new processing fee for asylum seekers, which would effectively disqualify families fleeing with nothing but the clothes on their backs. This week, it proposed a rule denying many asylum seekers authorization to work while their cases are being adjudicated, which can take years. This will force more immigrants into the shadows, contrary to Congress’s intentions.
The Trump administration keeps scolding desperate immigrants to shape up and “follow the law.” When will cowardly members of Congress insist that the president do the same?
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Catherine and some other reporters “get it” as to what Trump is doing to the law, our democratic institutions, and our Constitution. How come Federal Appellate Judges, Supreme Court Justices, and GOP legislators stick their collective heads in their sand and pretend not to understand the true long-term ramifications of what they are letting Trump do? Why aren’t they protecting our Constitutional and civil rights, not to mention human rights?
It’s all part of “Dred Scottification” – the degradation and dehumanization of individuals while stripping them of their rights combined with a constant barrage of outright lies and false narratives. And, contrary to the apparent belief of many “Trump Toadies” throughout our system and the electorate, once Trump turns on them, which he eventually will, the rights they counted on for protection will be long gone. The total lack of empathy, the ability to understand and appreciate the pain and suffering of others, is perhaps the worst aspect of the Trump kakistocracy.
Thanks, Catherine, for your courageous and insightful writing!
Please join me in congratulating our dear friend and wonderful colleague Michele Pistone on winning the JM Kaplan Innovation Prize for her project, VIISTA. Michele has been developing this idea for a few years now, with the thoughtful contributions of many on this list. It is wonderful to see her work recognized and even more exciting to imagine how VIISTA will vastly expand high-quality, low cost legal services for immigrants.
Here is the text from the Kaplan announcement, but please go to this link and watch the video, too. It is inspiring.
Immigrants in America face a profound justice gap: six out of ten confront the immigration system without a lawyer. And that carries dire consequences: the Vera Institute of Justice found that immigrants with legal representation had an 1,100% increase in successful immigration court outcomes compared to unrepresented cases—leaving far fewer families torn apart by deportation orders. Unlike criminal proceedings in which defendants have the right to representation, immigrants are not entitled to court-appointed lawyers. And in a vast number of cases, immigration attorneys are out of reach due to access or cost constraints. As a bold solution, the Villanova University Interdisciplinary Immigration Studies Training for Advocates (VIISTA) program will offer the first university-based, online certificate program to train non-lawyers to assist immigrants. VIISTA seeks to revolutionize immigration law by educating a new category of legal advocates, much like the role nurse practitioners play in health care. Under existing regulations, graduates will be eligible to apply to become Department of Justice “accredited representatives” who can provide low-cost representation. VIISTA’s scalable and affordable platform will build a nationwide pipeline for hundreds, if not thousands, of passionate advocates fighting to advance immigrants’ rights.
Unlike criminal proceedings in which defendants have constitutional rights to representation, immigrants are not entitled to court appointed lawyers. Six out of ten immigrants confront the immigration system without a lawyer. Even child migrants are not granted free representation. The consequences are substantial: the Vera Institute found that immigrants are 12 times more likely to obtain available relief when they have an advocate. Lack of advocacy disrupts families and communities in life-altering ways. With each deportation order, families are separated, employers lose employees, and communities lose valued neighbors and friends. It is understood within the immigrant-serving community that we need more immigrant advocates. Most look to lawyers for the solution. However, they are out of reach for poor migrants. The problem requires an innovative approach. VIISTA represents a bold new solution.
Every time I walk into an immigration court I feel angry and ashamed. Angry and ashamed that we have an immigration legal system designed for failure. A system that is not primarily designed to focus on truth or justice. But that is primarily designed—like a shoddy assembly line —to push the product through. In this case the product is immigration cases—just get them out the door; send them back home. I believe that immigrants confronting the immigration system deserve justice. That belief drives me every day as I work to establish the first university-based, comprehensive, online, scalable, and affordable immigration-focused education. VIISTA will create a nationwide pipeline of advocate champions committed to securing justice for immigrants.
I have three broad challenges: First, how to build a vibrant, cohesive, online community? Prospective and pilot students want to study in community, share resources, post questions to mentors, and form study groups, and to feel part of a community of like-minded advocates for immigrant justice. Second, how to scale the educational program without losing its teaching effectiveness? The need for advocates is huge, but immigrant allies need education so they can meaningfully help. At scale, VIISTA is a bridge that links two growing needs. And third, how best to evaluate the impact of the program, set goals, develop benchmarks, and collect data?
I am blessed to have been and continue to be informed by many leaders in the immigration field. Many of the largest national organizations working with immigrants are helping me to build the curriculum, including Catholic Relief Services, Immigrant Justice Corps, and Kids in Need of Defense (KIND).
The Prize will help me to scale VIISTA. My goal is to graduate 10,000 immigrant advocates over the next ten years. And, it is realistic. Then, if every one of those new immigrant advocates helped just one immigrant family each month, they would help 660,000 immigrant families over ten years. And, the impact could be even greater than that because this program could be a model for using non-lawyers to provide legal services in other areas of law as well, like housing, evictions, simple divorces, and veteran’s affairs. Just like the medical field provided space for nurse practitioners and physician assistants.
I was privileged to have assisted in some small ways my good friend Michele with some of the early planning and development of this amazing program, including early “brainstorming sessions” and a video appearance before one of her first classes.
Suppose our Government “immigration bureaucracy” were led by brilliant, humane, yet practical individuals like Michele instead of the White Nationalist kakistocracy now in charge! Even the current, concededly broken, system could be made fairer, more efficient, and more functional with real leaders, out to solve pressing problems rather than intentionally aggravate them, instead of the “malicious incompetents” foisted on us by the Trump Administration.
Representation is perhaps the biggest single positive factor in immigration proceedings.Represented individuals understand the system, appear for nearly 100% of hearings, are released from detention more often, and succeed in their claims at multiples of those who are unrepresented. Those who truly have no defense are much more likely to accept results when competently represented by those who can realistically advise them as to their chances of success and their realistic alternatives in language they can understand. Courts at all levels are aided when competent representatives sharpen and present the legal issues for adjudication. (Although non-attorney representatives can’t appear in Article III Courts, they can certainly work with pro bono attorneys in a “paralegal capacity” to assist and facilitate such representation when necessary.)
In an Administration that trusted and honored its prosecutors’ judgement and expertise, representatives could work with Assistant Chief Counsel and the Immigration Courts to reduce the number of unnecessarily backlogged cases on the dockets.
A smart, humane Administration would “can” all of the expensive, inhumane, time wasting, and often illegal “gonzo enforcement” gimmicks and instead put the time and money toward working with states, localities, NGOs, and other private entities to achieve at least something approaching universal representation. Without minimizing the need for Article I Immigration Courts and other legislative reforms, an enlightened Administration, committed to due process and responsible enforcement, could drastically reduce Immigration Court backlogs, advance the delivery of justice, and improve conditions for everyone involved, including the Assistant Chief Counsel and the Immigration Judges who suffer many of the effects of this Administration’s “malicious incompetence” along with migrants, their families, and their representatives.
Congrats again, Michele! You’re amazing, and a spectacular role model for what America could and should be in a better future under wiser, honest leaders committed to our Constitution and human values!
Sanders’ plan reflects a fundamental distrust in border enforcement, at least in the traditional sense.
Sen. Bernie Sanders (I-Vt.) released an immigration plan Thursday that would dismantle President Donald Trump’s agenda — and fundamentally change how we decide who gets to be an American.
What would it do?
Sanders’ plan proposes a wholesale rewrite of the U.S. immigration system — everything from border security to legal status.
Sanders would seek to expand two Obama-era programs — Deferred Action for Childhood Arrivals, and Deferred Action for Parents of Americans and Lawful Permanent Residents — with the goal of allowing 85 percent of undocumented immigrants who have lived in the U.S. for at least five years to stay without the threat of deportation. Sanders says he would “push Congress, immediately” to pass legislation outlining a five-year pathway to citizenship for undocumented immigrants, with priority status for young people; any bill Sanders signs would not reduce “traditional, family-based visas.”
Sanders says he would decriminalize border crossings. “Punitive policies have been justified as a deterrent to migration, but in addition to being morally wrong, there is no evidence that these policies have served this purpose,” Sanders says in the plan. “The criminalization of immigrants has wasted billions of taxpayer dollars, dehumanized vulnerable migrants, and swelled already-overcrowded jails and prisons.”
Sanders says he would end detention for essentially every migrant without a violent criminal conviction. The Vermont senator would fund “community-based alternatives to detention” that would give migrants access to legal resources and health care.
Sanders says he would break apart the Homeland Security Department entirely — including Immigration and Customs Enforcement and Customs and Border Protection — and distribute the responsibilities among the Justice, Treasury and State departments. He says he would extend DOJ anti-profiling guidance to border areas and eliminate the use of DNA testing and facial recognition for enforcement.
Sanders would redirect government resources toward inspecting workplaces for wage and safety violations, with a focus on immigrant-heavy industries.
And, no, he would not finish Trump’s border wall.
How would it work?
Sanders’ plan reflects a fundamental distrust in border enforcement, at least in the traditional sense. It would dismantle most of the mechanisms that previous presidents — not just Trump — have used to deter people from coming here illegally.
By itself, Sanders’ plan to eliminate criminal penalties for migrants would not stop people from being deported; many border crossings are both a civil and criminal offense, but the criminal piece was rarely used prior to President George W. Bush. Sanders takes a great leap further by eliminating detention for the vast majority of undocumented immigrants. While he proposes integrating migrants in communities, Sanders does little to explain how he would help cities shoulder the burden and provide housing (beyond saying that temporary housing would “meet humane, 21st century living standards”).
Nor does Sanders explain how he would background-check migrants as levels rise. The expansion of DACA and DAPA, for example, would require the U.S. to screen entrants’ criminal backgrounds — the programs require a clean record — but Sanders does not say how he would do that once ICE and CBP are dismantled. Sanders would likely run into the same problem trying to sift out violent criminals crossing at the border for detention.
Sanders calls for the repeal of Section 1325 of Title 8 of the U.S. Code, which makes crossing the border without undergoing an inspection by an immigration officer a misdemeanor offense. The Trump administration used the statute to justify separating families under its zero-tolerance border strategy, which split apart thousands of families in the spring of 2018. Under the policy, adults were charged with illegal entry and detained for prosecution. They were separated from their children, who were then labeled “unaccompanied.”
Many of the other top-tier candidates, including Sens. Kamala Harris (D-Calif.) and Elizabeth Warren (D-Mass.), also support decriminalizing border crossings. Former Vice President Joe Biden is the exception, saying it should be a crime.
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Although not mentioned in Ian’s summary, a key part of the “Sanders Plan” establishes an independent U.S. Immigration Court:
Establish immigration courts as independent Article I courts, free from influence and interference.
More than double funding for immigration adjudication to fully fund and staff immigration courts and eliminate the case backlog.
Frankly, without an independent U.S. Immigration Court to insure fairness, due process, and accountability, all other immigration reforms are essentially meaningless.
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Dear Colleagues,
As you may be aware, on August 26, 2019, the Agency announced drastic organizational changes to EOIR, via interim regulations effective immediately. Among a number of troubling changes, the Agency collapsed the role of the Director with that of the Chairperson of the Board. Attached please find NAIJ’s comment, filed on October 25, 2019, in response to this interim rule. You may also visit the following link to see other comments by additional organizations in response to the EOIR’s interim rule.
https://www.regulations.gov
I personally would like to take this opportunity to thank Judge Khan and Judge Marks for leading the laborious effort in finalizing this Comment for publication.
Additionally as we have just concluded our rating period, IJs should be receiving their formal performance evaluations. Please contact us with any questions or concerns if you believe (or have been notified) that you will receive a rating of less than Satisfactory on all of your PWP elements.
Many IJs have inquired about ways that they may register their protest against the imposition of the quotas and deadlines. If you are inclined, you may use the proposed language below in your cover email returning the electronically signed PWP to your ACIJ.
● Protest Language – “I do not agree that the numerical metrics/quotas constitute an accurate measure of my performance. Nor do I agree that the numbers produced by EOIR are accurate within the designated metric categories.”
As always, we welcome any questions, comments and concerns. Hope you have a great weekend,
Ashley Tabaddor
President, NAIJ
One of the “under the radar” aspects of this “deconstruction of justice in America” is the arrogant confidence of Sessions, Barr, and their minions at DOJ and EOIR that Congress and the Article III Courts will turn a “blind eye” to their blatantly “in your face” unconstitutional behavior. So far, they have been right.
Article III Courts have recognized the Immigration Judges’ “duty to remain neutral and impartial when they conduct immigration hearings.” See, e.g., Wang v. Att’y Gen., 423 F.3d 260, 267–68 (3d Cir. 2005). Yet, they have basically ignored their own rules and pronouncements by continuing to approve decisions from a “fake” court system. One where the “judges” are selected, supervised, and can be removed by the “Chief Prosecutor” and are told that they owe their first duty of obedience to that prosecutor rather than to the Constitution or the rule of law that they are sworn to uphold. Even when they do rule in favor of the individual, the prosecutor can and does simply reach in, change the result, and then designate his prosecutorial decision as a “precedent.”
What kind of “Due Process” and “fundamental fairness” is that? What Article III Judge would submit him or herself to such a parody of “justice?”
EOIR as “redesigned, politicized, and weaponized” against migrants and their courageous representatives by the Trump DOJ mocks the stated criteria and standards of the Article IIIs. Why are the Article IIIs afraid to follow up their legal rhetoric with the actions that logically should flow from it?
Under Trump, the Attorney General and his toadies have disingenuously disparaged the motives and character of the individuals coming before the “courts” and their attorneys. Many are actually forced to appear “unrepresented” and have no idea what is happening and the intentionally arcane, hyper technical, and confusing “rules” being applied to extinguish their rights and claims.
DOJ officials have also demeaned, disparaged, and denigrated the work ethic and character of their own “judges” with limitations on their authority, “Mickey Mouse” quotas and timeframes, and giving away judicial authority to non-judicial officials at EOIR, as Judge Tabaddor cogently points out.
Article III Courts compound that error when they improperly “defer” to Executive Branch adjudicators who are neither “fair and impartial” nor in many cases “expert.” The whole system is intentionally put under pressure to “produce and deport,” with scholarship, independent judicial decision making, and Due Process being shoved to the “back of the bus.”
By accepting contemptuous unlawful actions from Barr and the DOJ, the Article III Judiciary basically diminishes itself and demeans its Constitutional role.Perhaps that doesn’t make any difference to most of them; life tenure guarantees that they get paid every day just for waking up regardless of what they do afterwards. But, as Congress is finding out, once you establish yourselves as feckless in the face of a tyrannical and overbearing Executive, respect and proper Constitutional roles might prove difficult or impossible to regain.
Since the NAIJ leadership seem to be the only ones courageous enough to speak out against the travesty occurring in the Immigration Courts, no wonder the DOJ is trying to illegally disband the NAIJ. I wonder why these very overt actions to suppress the First Amendment and subvert the Fifth Amendment are going “over the heads” of the Article III Judiciary. What’s the purpose of an “independent judiciary” that is afraid or unwilling to stand up for judicial independence when it matters most!
As the late Dr. Martin Luther King, Jr., said:
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
I think he would be totally disgusted with the overall performance of the Article III Appellate Judiciary in failing to stand up for and protect the legal rights and very lives of the most vulnerable among us: migrants, including asylum seekers.
FULL DISCLOSURE: I am a proud retired member of the National Association of Immigration Judges.
A Miami immigration judge with less than two years of experience on the bench was fast-tracked for a permanent position on the nation’s highest immigration court. The move has raised concerns about politicized hiring at the Justice Department.
Deborah Goodwin was one of six judges handpicked by Justice Department officials to fill vacancies on the Board of Immigration Appeals (BIA), a 21-member appellate court that sets binding legal precedents for more than 400 immigration judges serving in the nation’s 57 immigration courts. These six judges, who have little in common other than their markedly high rates of asylum denial, were permanently added to the board in August without undergoing any probationary period, according to documents obtained through Freedom of Information Act requests by the investigative website Muckrock.
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Memos sent to the office of Attorney General William Barr in July reveal that the Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, adopted new hiring procedures in March to evaluate candidates. It was “EOIR practice” to appoint a board member temporarily and require that person to complete a two-year probationary period, but the agency now believes that a sitting immigration judge has “the same or similar skills” as an appellate judge and should therefore be immediately installed permanently. The memos, obtained by Muckrock and shared with CQ Roll Call, were written by EOIR Director James McHenry.
“This is clearly a political move. There’s no question about it,” says Jason Dzubow, a D.C.-based immigration lawyer who runs the blog the Asylumist. “And there’s no way someone looking at the appearance of this can consider the hirings good for fairness in the immigration court system.”
Goodwin has a strong background in immigration enforcement: She worked as an associate legal adviser and assistant chief counsel for Immigration and Customs Enforcement. The judge, who presides over the court in Miami-Dade’s Krome migrant detention center, began hearing cases in 2017. As of the end of last year, she had an asylum denial rate of 89 percent, according to Syracuse University’s Transactional Records Access Clearinghouse. That’s far above the national average of 57 percent during the same period and almost 10 percentage points higher than the average for the Miami immigration court as a whole.
Of the six judges, Goodwin — who was appointed by former Attorney General Loretta Lynch — has received relatively little attention due to her limited time on the bench. Other appointees, such as Atlanta’s William Cassidy and Charlotte’s Stuart Couch, have been far more controversial. Cassidy, who had an asylum denial rate of 95 percent between 2013 and 2018, has been the subject of various complaints from immigration attorneys over the years. Couch, who had a rejection rate of 92 percent, issued ten rulings in 2017 that were found “clearly erroneous” by the Board of Immigration of Appeals. All ten of those of rulings involved the rejection of asylum claims by women who had been victims of domestic violence.
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In a recent interview with Dzubow, former U.S. Chief Immigration Judge MaryBeth Keller said the recent BIA hirings were “stunning.”
“I think [immigration judges] are generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that,” Keller told Dzubow. “I find these recent hires to be very unusual.”
Immigration judges, and appellate judges in particular, can come from a wide range of legal and professional backgrounds, although scandals of politicized hiring have cropped up in the past. In 2008, a report by the Office of the Inspector General revealed the George W. Bush administration had engaged in illegal hiring practices for years by selecting immigration judges based on their political views. Perhaps unsurprisingly, immigration judges selected during that time were found to have disproportionately denied asylum claims.
Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals, responded to the new appellate court appointments on his blog, immigrationcourtside.com: “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qaualifications [sic] of candidates who were passed over.”
Manuel Madrid is a staff writer for Miami New Times. The child of Venezuelan immigrants, he grew up in Pompano Beach. He studied finance at Virginia Commonwealth University and worked as a writing fellow for the magazine The American Prospect in Washington, D.C., before moving back to South Florida.
OK, so I can’t spell or proofread. That’s why I’m a “gonzo journalist.” (I actually went back and corrected the spelling after seeing Manuel’s article. But, it definitely was in the original posting.)
Every time a Court of Appeals signs off on a “removal order” generated by these blatantly unconstitutional (not to mention unqualified) “courts” that violate Due Process every day in numerous ways, those Article III Judges are betraying their duties to uphold the Constitution.
Manuel’s article also sheds some light on the opaque hiring practices of the Obama Administration under AG Loretta Lynch. Not only did Lynch incompetently administer the mechanics of Immigration Judge hiring — approximately two years to fill an average IJ vacancy (ridiculous) & dozens of open positions negligently left “on the table” for Sessions — she consistently filled the courts with “go along to get along government insiders” to the exclusion of many better qualified candidates from the private bar who could have added to the dialogue much-needed scholarship (particularly in the asylum and Due Process areas) and a more practical understanding of the predicament of asylum seekers.
Of course, some Government attorneys make outstanding, fair, scholarly Immigration Judges. I recommended numerous well-qualified INS and DHS attorneys for such appointments over the years, along with many from private practice and academia. But, along the lines of what former Chief Judge Keller said, Government attorneys can’t essentially be the “sole source” of judicial appointments.
To a large extent, Sessions and Barr have “weaponized” and accelerated Lynch’s already one-sided exclusionary hiring practices. While Lynch apparently didn’t want to “rock the boat” with any possible “pushback” while she promoted some of the Obama Administration’s worst anti-asylum policies and practices, including family detention, “Aimless Docket Reshuffling,” and forcing toddlers to “litigate” in court, Sessions and Barr intend to “sink the boat” with all migrants on board!
Toxic as the GOP’s hiring practices and manipulation of the process have been under Bush and Trump, they at least understand the potential impact of who sits on the Immigration Courts and the BIA, and act accordingly. By contrast, the Democrats have been lackadaisical, at best, and inept at worst, in appointments to the Immigration Judiciary.
Under Obama, the Democrats. loved to complain that Mitch McConnell stood in the way of judicial appointments. But, given a chance to positively reshape an entire court system, perhaps the most important if least respected and appreciated courts in America, without any Congressional interference or roadblocks, they dropped the ball. And that explains lots of today’s atrocious dysfunction in the immigration justice system.
Assuming that we someday get much needed “regime change,” an independent U.S. Immigration Court must be the number one priority. The Dems could have gotten the job done in 2008. Their failure to do so has caused untold human suffering, including needless deaths, and a potentially fatal degradation of our entire justice system. Never again!
Incomplete and Garbled Immigration Court Data Suggest Lack of Commitment to Accuracy
TRAC recently discovered gross irregularities in recent data releases from the Executive Office for Immigration Review (EOIR), the agency that oversees the US immigration court system. After attempting – unsuccessfully – to work with the EOIR to fix these problems, TRAC decided to make public our observations of the quality of the agency’s public data releases as well as express our concerns about the lack of commitment within the agency to responsible data management.
Policymakers and the public routinely put their faith in federal agencies to provide complete and accurate information about their work. The value of government transparency is even higher in the area of immigration law and the Immigration Courts, which have become topics of considerable concern for Americans from all walks of life and for all three branches of government. In the present context, TRAC views concerns about EOIR’s data inconsistencies – outlined below – as substantive, ongoing, and in need of prompt attention. Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.
“Significant Errors” in Past EOIR Data
This is not the first time the public has identified significant inaccuracies in EOIR’s reported data. For instance, the Supreme Court of the United States relied upon figures provided by the EOIR as the basis for a major ruling affecting ICE detention practices. After the Supreme Court decided the case, the public discovered that the figures provided by the EOIR were fundamentally wrong. The EOIR did not uncover the data irregularities on its own. The EOIR’s mistakes were only recognized because the public obtained the underlying data through a Freedom of Information Act (FOIA) request and identified the relevant discrepancies.
After the public alerted the government to its inaccuracies, in 2016 the U.S. Solicitor General was compelled to issue a formal letter to the Supreme Court apologizing for providing inaccurate data. The following excerpt of the Solicitor General’s letter on August 26, 2016 attests to this error:
“This letter is submitted in order to correct and clarify statements the government made in its submissions. … EOIR made several significant errors in calculating those figures. … This Court’s opinion cites figures that ‘EOIR ha[d] calculated,’ …, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. … The Court therefore may wish to amend its opinion…” (emphasis added)
This example illustrates the very real danger posed by the EOIR’s mishandling of data, as well as the value to society – and the government itself – of ongoing oversight through Freedom of Information Act (FOIA) requests. Despite the EOIR’s past data mistakes, however, the quality of the agency’s data releases has recently declined to unacceptable levels, as we discuss in the following section.
Recent Data Trouble at the EOIR
As a result of TRAC’s ongoing FOIA requests, the Executive Office for Immigration Review releases a large batch of anonymized data about Immigration Court cases every month. Statistics on the operation of the Immigration Courts largely rely on information kept in a massive database maintained by the EOIR. The EOIR records information on each matter filed with the court and tracks subsequent events as the Court processes each case. This data is central to the Court’s ability to efficiently and effectively manage its workload.
Although this data is highly valuable to policymakers and the public, the EOIR’s mishandling of the data undermines its accuracy and public value. These data problems have been occurring with increasing regularity. Severe irregularities with the September 2019 data release set a new low.
On October 9, 2019, the EOIR responded to TRAC’s FOIA request for updated case-by-case data through September 2019. TRAC promptly began processing the data in order to update TRAC’s online tools and reports, and discovered serious inconsistencies that made the data unusable. TRAC alerted the EOIR to the problems we uncovered. The chronology below summarizes the cycle of data mishandling for the September data release, and TRAC’s attempts to work with the EOIR to obtain complete and corrected data.
Data Release, Batch 1. The initial release of the EOIR’s September data included 11 separate files of records on Immigration Court proceedings that were incorrectly formatted. The garbled data resulted in substantial confusion over the relationship between certain variables and values, with some values appearing to apply to the wrong variables in the file. If potential users were even able to read the garbled data, one could reach entirely erroneous conclusions about court events. As soon as TRAC discovered these issues, it alerted the EOIR directly. EOIR promised to look into the matter.
Data Release, Batch 2. In response to TRAC’s notification, the EOIR replaced the first release with a second release and informed TRAC that the problems had been fixed. However, when TRAC processed the second release, it found that while the first set of problems had been fixed, an entirely new set of problems had occurred. In Batch 2, thousands of records of court proceedings and 2.8 million records on scheduled hearings – hearings and proceedings which were included in the first release – had entirely disappeared. TRAC alerted the EOIR directly to the new set of data inconsistencies. EOIR promised once again to look into the matter.
Data Release, Batch 3. The EOIR informed TRAC that it had fixed these new problems, and that TRAC could trust Batch 3 of the EOIR’s data release. Note that EOIR doesn’t change the labels it uses for each release; the file name remains the same and hence on its face indistinguishable from any previous release. After processing millions of records contained in the series of separate tables that made up the new release, TRAC found that problems in batch three were identical to problems in batch two. We again notified EOIR that the problems remained. At first EOIR insisted that TRAC was wrong and that the problems had been fixed. It later emerged that while the General Counsel’s office of EOIR (TRAC’s point of contact) believed a third and corrected release was being supplied, the files had not been changed but were actually the same files that TRAC had received in Batch 2.
Data Release, Batch 3 (cont.) TRAC was finally provided access to what was again billed as the corrected September release. TRAC again processed these files. This time, based on total record counts it appeared that the missing 2.8 million records on scheduled hearings had reappeared. However, some court proceedings that had been contained in Batch 1 were still missing. And there were still other puzzling omissions which we describe in more detail below.
After this series of mistakes, TRAC urged the agency to implement basic quality control procedures to ensure that the EOIR’s data releases to the public were not inadvertently garbled or incomplete. Moreover, TRAC expressed concern about the EOIR’s underlying data management practices which posed a risk to both the public and the government if left unaddressed. We conveyed these concerns to EOIR noting specifically:
“There are standard procedures that anyone in charge of maintaining databases use. The pattern of repeatedly releasing files which are either unreadable or incomplete demonstrates the agency’s standard operating procedures are woefully inadequate.
This really needs to be taken seriously. Without answers to our questions that get to the bottom of what occurred, identifying what went wrong, and implementing a plan to catch mistakes before the agency publicly distributes bad data, means that history will keep repeating itself.”
On Friday, October 25, 2019, while admitting mistakes had been made, the EOIR dug in its heels. The agency responded to TRAC’s entreaties by sidestepping the underlying issue and avoiding responsibility for its routine inaccuracies:
“[T]he FOIA [Freedom of Information Act] does not require the Agency to create records in response to your specific questions, nor to certify the accuracy of data contained in responsive documents.”
TRAC was forced to take note of the EOIR’s unwillingness to fully correct their mistakes and to work with the public to resolve the declining quality in their data releases.
The Case of the EOIR’s Disappearing Data
After recognizing the seeming inability of EOIR to produce a correct and complete data release for September 2019, TRAC began digging deeper into the problem.
Our concern about EOIR’s data was already heightened. We recently discovered that some months ago the EOIR had begun silently deleting swaths of records in their entirety from the data releases that we and other members of the public received. EOIR belatedly told us that withholding of entire records was necessary to protect immigrants’ privacy. This rationale was perplexing since these records were already anonymized and all identifying details deleted. Regardless of the EOIR’s justification for withholding the records, the agency had started making these deletions without alerting us that it was doing so, and failed to mark the data in any way to indicate the magnitude of the deletions or indicate in which files the deletions occurred.
TRAC is in a fairly unique position to examine this problem. For many years, TRAC has been regularly requesting snapshots of anonymized data from EOIR’s database as part of our mission to provide the public (and often other government agencies themselves) with access to reliable, accurate data about the Immigration Courts. Because we receive and retain these monthly snapshots, we are able to monitor changes in these releases over time and assess whether releases are incomplete or inaccurate in some other way.
Therefore, TRAC undertook a careful comparison by matching the records received in the September 2019 release against the EOIR’s release for the previous month, August 2019, and with the release we received a year ago for September 2018. This time we matched records based on unique identification numbers rather than simply comparing total record counts. This allowed us to identify records which the EOIR released in the past but were missing entirely from the current shipment.
The results of this comparison were sobering. Compared to the August 2019 release, the (allegedly-accurate) final September 2019 release was inexplicably missing more than 1,500 applications for relief that were present the previous month. We further found that 896,906 applications for relief which were present in the September 2018 release from a year ago were missing from the September 2019 files we received. This discrepancy of nearly a million records largely occurred because the EOIR appears to have started silently but systematically deleting records.
Compared to the data from August 2019, the EOIR’s files for September were also missing records on over 600 charges DHS had filed. Also missing were over 700 case and/or court proceeding records, and over 900 records on scheduled hearings. An additional 1,200 records flagging various specific types of cases were also missing. For context, this flagging system is used to identify juveniles, recently arrived families seeking asylum, and immigrants required to remain in Mexico under the Migration Protection Protocols, and other special cases.
When the records in the September 2019 release TRAC received were matched with those from the September 2018 release a year earlier, the problems we uncovered multiplied. It was clear that the problem of missing records grew by leaps and bounds with the passage of time.
EOIR Data Management: Problems and Solutions
Based on the investigation above, TRAC identified key gaps in the EOIR’s data verification procedures that lead to unreliable and inaccurate data releases.
Unintentional data removal. The EOIR’s data is inconsistent because the agency apparently does not perform a simple yet essential data verification step: it does not compare the number of records in its source database and the number of records in its released files to ensure that no records have been lost along the way. This is not merely a best practice. It is an industry standard for agencies managing large databases, and it is a routine practice in many of the EOIR’s peer agencies that provide large data releases to TRAC.
Intentional data removal. The EOIR also does not appear to be keeping track of intentionally deleted records. If the EOIR is screening out records for specific reasons, then the number withheld for each reason in a file should be counted and these counts provided. The number withheld plus the number released should match the total number of records read in to ensure reliability.
Garbled data releases. The EOIR is paying insufficient attention to how data releases are produced and formatted. Columns and rows in each table need to properly line up; otherwise information becomes garbled. And since EOIR’s database consists of many closely interconnected tables, copying data in individual tables at widely separated points in time inherently means the information will be out of sync.
Possible data deletion in master database. Deletions of the EOIR’s original source records need to be carefully tracked and procedures in place to prevent unauthorized deletions from occurring. If applied systematically, such a verification process would also pinpoint whether there were deletions made in EOIR’s original source records. Any suspicious deletions need to be investigated to ensure the integrity and completeness of this master database is maintained.
If the EOIR does not implement basic data verification procedures, the public cannot tell if records were intentionally withheld and why they were withheld, or if records were accidentally omitted during the data copying process. The failure to address these problems also means that the public has no way to test for potential problem areas in EOIR’s underlying master data files.
Accuracy, Reliability, Cooperation
Under any circumstance, maintaining a massive database of this nature is challenging. Clearly it requires the resources necessary for day-to-day operations. More fundamentally, however, it requires a commitment on behalf of the agency to provide the public with complete, accurate, and reliable data about the agency’s operations. When TRAC uncovered unexplained data issues in the past, we have brought them to the attention of the EOIR and generally found the agency to be fairly responsive and committed to ensuring accurate reporting. The recent change in posture is therefore concerning. Moreover, because EOIR’s data are relied upon as part of the official record of court filings and proceedings that have taken place, one should not expect official records to simply go missing without explanation.
It is deeply troubling that rather than working cooperatively with TRAC to clear up the reasons for these unexplained disappearances, the agency has decided to dig in its heels and insist the public is not entitled to have answers to why records are missing from the data EOIR releases to the public. TRAC urges the EOIR to take the basic steps necessary for managing any large database, especially a database of as inestimable value and relevance as the one EOIR maintains for the Immigration Courts.
Without accurate data, there can be no effective oversight, by Congress, the Judiciary, or the public (which contrary to their nasty attitude, is whom EOIR actually serves). TRAC’s experience with “malicious incompetence” is typical of the Trump Administration’s “stonewalling” and disregard of honesty and public service. They are too busy denying Due Process and evading the law to bother with facts.
Quality is simply not a factor, or even an objective, at the “New EOIR!” Unfortunately, that’s true not only in record keeping, but also in making life or death adjudications.
The only thing that makes any difference in this Administration is a preconceived White Nationalist agenda that has absolutely nothing to do with facts or public service and everything to do with racism, xenophobia, and political pandering. Obviously, because facts and data don’t support, and typically directly refute, this Administration’s draconian anti-immigrant initiatives, they have no interest in the truth or accuracy. Indeed, as in most things, facts and truth are quite damaging to the Trump Administration’s programs.
There is absolutely no excuse for EOIR’s continued existence.Much of the information that EOIR feeds to the Judiciary, through DOJ attorneys, is misleading, inaccurate, or perhaps even fabricated. By not putting a stop to EOIR’s nonsense and non-responsiveness, both Congress and the Article III Courts are demeaning themselves and shirking their Constitutional responsibilities.
