😰IMMIGRATION 101: SUMMER GRADES POSTED: GARLAND, BIA, & OIL GET “F’s” FROM 1ST (FRENTESCU TEST) & 3RD (CATEGORICAL TEST) CIRS! — Meanwhile, NDPA Litigators Get “A+’s”

Dunce Cap
With lives on the line, the BIA’s performance leaves something to be desired.
PHOTO: Creative Commons

From Dor v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/20-1694P-01A.pdf

Given our familiarity with the record at this point, we are prompted to note that it is not at all apparent to us how an application of the Frentescu factors to Dor’s case would lead to a particularly-serious-crime determination. For instance, consider again the June 1 incident — the BIA relied on a police officer’s assessment that Dor had a “large amount” of marijuana on him, but this on-the-scene appraisal by an officer is largely irrelevant to an immigration-law-driven determination that a crime is particularly serious pursuant to the guiding statutes, especially when the actual amount (25 grams, a small amount) is available. See Matter of Castro Rodriguez, 25 I. & N. at 703; Moncrieffe, 569 U.S. at 194 n.7. Consider, too, that while the BIA identified the type of sentence imposed as a Frentescu factor but never mentioned (or weighed) Dor’s sentences, we observe that

– 23 –

Dor received lenient sentences with respect to both offenses (a two-year probation and a one-year suspended sentence that never went into effect since Dor completed a violation-free probation period).

As to Dor’s involvement in trafficking as part of the calculus here, based on the amount in question, and again on the face of this record, this characterization seems ambitious. The May 20 offense officers observed Dor sell “20 bucks[‘ worth]” of marijuana to another individual; the June 1 incident revealed Dor had in his possession a digital scale, a large amount of U.S. currency, and 25 grams of marijuana.

Bottom line: The BIA’s particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor’s case, we still do not have a sufficiently rational explanation of the BIA’s particularly-serious-crime conclusion as to Dor’s minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks.

DEAN’S LIST: A+‘s go to :

Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

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

From Vurimindi v. AG, 3rd Cir.

https://www2.ca3.uscourts.gov/opinarch/191848p.pdf

In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense.

DEAN’S LIST: A+‘s go to DLA Piper’s:

Courtney Gilligan Saleski

https://www.dlapiper.com/en/us/people/s/saleski-courtney-gilligan/

Courtney Gilligan Saleski
Courtney Gilligan Saleski
Partner
DLA Piper

and

Rachel A.H. Horton

https://www.dlapiper.com/en/us/people/h/horton-rachel/

Rachel A.H. Horton
Rachel A.H. Horton
Associate
DLA Piper

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

Interestingly, the BIA’s defective decision in Dor involved improper reliance on police reports. This comes just as a new NIJC report shows how improper reliance by EOIR on police reports means that “racism and inequities in the criminal legal system and policing carry over into the immigration system.” https://default.salsalabs.org/T59538212-844f-4d6d-ade1-0428b5eef400/e9c83407-de3b-4bcf-a318-704cbcd599a2. 

The Dor case also presents a familiarly outrageous characteristic of American immigration policy — still going strong in the era of Biden, Harris, and Garland — “Dred Scottification” — that is systemic injustice — directed at Black Haitian refugees. Indeed, Dor is lucky to be in the “system” at all — no matter how biased and poorly functioning. Following in the footsteps of the overtly racist and xenophobic Trump Administration, under Biden more than 25,000 potential Haitian refugees have been arbitrarily returned under Title 42 with no process at all — not even the “veneer of due process” provided by EOIR! See https://www.wola.org/2022/05/weekly-u-s-mexico-border-update-title-42-ruling-family-self-separations-more-drownings-haiti-expulsion-flights/.

The cases described above have been pending for three and six years, respectively. EOIR presents the worst of both worlds: lengthy delays and backlogs without due process and careful expert consideration of the issues involved. Injustice at a high cost, in more ways than one!

After trips to three levels of our broken immigration justice system, countless hours of legal time, and untold trauma and uncertainty for the individuals subjected to this dysfunctional system, these cases remain far from final resolutions. Now they go back into Garland’s incredible nearly two million case backlog!

Sometimes, the BIA uses this as an opportunity to invent a new “bogus theory of denial.” Other times, the files get lost or reassigned. In other words, they are subject to EOIR’s “specialty:” “Aimless Docket Reshuffling!”

Garland doesn’t lose any sleep over it because: 1) not his life on hold, 2) not his time and money being wasted, and 3) he isn’t paying attention! This is unacceptable public service! Plain and simple! And, there appear to be few, if any, real consequences for anybody except the individuals whose lives and futures are at stake and their (often pro bono) lawyers!

How completely “out of touch” is Garland? He has put bogus, “Mickey Mouse” time limits on new asylum adjudications. Doing incompetent and biased adjudications faster isn’t going to solve the problem. It will actually make backlogs worse and more importantly, increase the number of defective asylum denials — already at beyond unacceptable levels.

You can’t fix a broken system by making it “pedal faster!” Why, after all  these years, Garland doesn’t understand that “fundamental rule of Goverment bureaucracy” is totally beyond me!

The obvious solution: Put emphasis on getting these cases right at the first instance. That means “canning” the “anti-immigrant default and assembly line process” and getting expert IJs willing to rule in favor of individuals where appropriate and a revamped BIA of expert judges willing to issue precedents favorable to individuals and insure that IJs properly follow them. It also means a BIA who will follow precedent even where it doesn’t produce a “DHS Enforcement-friendly result.”  

Additionally, “lose” OIL’s often-dilatory or quasi-frivolous arguments designed to cover up EOIR failures and block justice! (HINT: The Assistant AG, Civil, one of the key sub-cabinet positions at DOJ, and OIL’s “boss,” remains unfilled approaching the halfway point of the Biden Administration.) This system is broken from top to bottom, including the litigation “strategy” that attempts to shield unfair and legally incorrect EOIR decisions from critical substantive review by Article III judges independent from the Executive. 

Yes, Garland recently has “pruned” some of the deadwood at EOIR and brought in a few widely-respected expert “real judges.” That’s some progress.

But, he’s barely scratched the surface of the anti-immigrant culture, “haste makes waste” atmosphere, and shoddy decision making at EOIR and the poorly conceived litigation strategies at OIL! In particular, the dysfunctional DOJ immigration bureaucracy glaringly lacks inspired progressive due-process-committed, human-rights-focused, racial-justice-sensitive leadership willing to stand up for individual rights against Government overreach and abuses!

Of course, the “real” solution is to get the Immigration Courts out of DOJ and into an independent Article I structure. But, unfortunately, that isn’t going to happen tomorrow.

In the meantime, there is plenty that Garland could be doing to improve due process and professionalism and to “pave the way” for the eventual transition to Article I. The more dysfunctional Garland makes his system the more difficult and rocky that transition will be.

Garland isn’t getting the job done! Everyone who cares about the future of our nation and the rule of law should be asking why and demanding better from Garland and his “asleep at the switch” lieutenants!

High-powered lawyers like Courtney Saleski, National Co-Chair of DLA’s White Collar Practice, who successfully litigated Vurimindi in the 3rd Circuit have some “juice.”  They need to team up with the ABA, FBA, AILA, ACLU, Human Rights First, NIJC, the NAACP, Catholic Conference, HIAS, and other human rights and civil rights groups and “camp on Garland’s doorstep” until he “pulls the plug” on his dysfunctional, unprofessional EOIR and brings in due-process-focused competence! How many resources and human lives can our nation afford to waste on Garland’s EOIR disgrace?

Alfred E. Neumann

Individuals whose lives are subject to systemic injustice and their hard-working, often pro bono, attorneys might “dissent” from Garland’s dilatory approach to long overdue due process reforms and key personnel changes in his stunningly  dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

08-24-22

WENDY YOUNG @ KIND ON SAN ANTONIO TRAGEDY

Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)

 

pastedGraphic.png

 

 

 

Dear Paul –

 

The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.

 

“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”

 

– The KIND Team

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

The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.” 

Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker. 

Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.  

Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’s  poor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!  

Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:

The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.

https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrants-deaths-solutions/

I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.

Democrats have made numerous reasonable legislative proposals to bring Dreamers and other long-term productive residents of America out of the underground and into the legal mainstream of our society. Additionally, Veteran Senator Pat Leahy (D-VT) has introduced the Refugee Protection Act. https://immigrationcourtside.com/2019/11/24/professor-karen-musalo-la-times-we-can-restore-legality-humanity-to-u-s-asylum-law-thats-why-the-refugee-protection-act-deserves-everyones-support/ Also, Chairman Zoe Lofgren (D-CA) has sponsored the “Real Courts Rule of Law Act of 2022.” https://immigrationcourtside.com/2022/05/16/%e2%9a%96%ef%b8%8fimmigration-courts-article-i-bill-passes-out-of-house-judiciary-on-party-line-vote/.

All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.

And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.

 The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴‍☠️

🇺🇸 Due Process Forever!

PWS

06-30-22

⚖️IMMIGRATION COURTS: Article I Bill Passes Out Of House Judiciary On Party Line Vote!

 

From ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2022/05/bill-creating-independent-immigration-court-passes-in-house.html

ImmigrationProf Blog

Saturday, May 14, 2022

Bill creating independent immigration court passes in House

By Immigration Prof

After years of advocacy from theNational Immigration Judges Association (here and here), immigration attorneys (from ABA and AILA), and scholars, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA), introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577) that has passed House Judiciary Committeewith a vote of 24-12. It will next move to the House floor.

An section-by-section analysis of the full text legislation is here.

MHC

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

Unfortunately, without any GOP support, this Article I Bill will be DOA in the Senate.

🇺🇸Due Process Forever!

PWS

05-16-21

 

💤😴GARLAND DOZES AS COURTS CRUMBLE!☠️

Rip Van Winkle
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”
Scott Bixby
Scott Bixby
National Reporter
The Daily Beast

 

 

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

Scott Bixby reports for The Daily Beast:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

….

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

Read Scott’s full article at the link.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸Due Process Forever!

PWS

04-14-22

⚖️CHAIR LOFGREN’S “REAL COURTS RULE OF LAW ACT OF 2022,” H.R. 6577, TO GET MARKUP THIS WEEK!

FROM AILA:

From: George Tzamaras <GTzamaras@aila.org>

Sent: Tuesday, April 5, 2022 2:36 PM

To: AILA Board of Governors Mailing List <bog@lists.aila.org>

Subject: [bog] PLEASE SHARE: New AILA Think Immigration video blog post with Jeremy McKinney and Greg Chen regarding immigration court reform (includes sample tweets and posts).

 

Good afternoon everyone,

 

We are really excited that this week the House Judiciary Committee is scheduled to mark up the Real Courts, Rule of Law Act of 2022 – introduced by Rep. Lofgren to establish an independent immigration court system which we’ve been working for steadily for years now. The markup hearing will cover a lot of different bills so we may see the bill come up today, or more likely tomorrow. To watch the hearing, keep an eye on the hearing livestream page: https://judiciary.house.gov/calendar/eventslisting.aspx?EventTypeID=216

 

The AILA Comms Team produced a video in which Jeremy McKinney and Greg Chen talk through the immigration court’s problems and the need for a real solution in order to ensure judicial independence and due process. We have embedded the video as a blog post and would love to have you amplify it to your networks on social media.

 

To make that easier, we’ve created some sample social below for the video blog post. Also, don’t forget to TAKE ACTION yourself by contacting your congressional delegation and urging support for the bill: https://www.aila.org/advo-media/tools/advocacy-action-center#/114

 

Sample tweets:

  • I’ll be watching to see the House Judiciary Committee mark up the Real Courts, Rule of Law Act which would create an independent #immigration court this week. WATCH this video with @MckJeremy and @GregChenAILA for a helpful intro: http://ow.ly/oqap50IB7Cp @AILANational
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH @AILANational’s @MckJeremy and @GregChenAILA explain: http://ow.ly/oqap50IB7Cp
  • Sample Facebook/LinkedIn posts:
  • I’ll be watching to see how the Real Courts, Rule of Law Act introduced by Rep. Lofgren fares as the House Judiciary Committee discusses how to create an independent #immigration court but in the meantime, this video with AILA President-Elect Jeremy McKinney and Greg Chen serves as a helpful intro: http://ow.ly/oqap50IB7Cp
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH AILA’s President-Elect Jeremy McKinney join Greg Chen to explain:

http://ow.ly/oqap50IB7Cp

 

Thank you,

G

 

George Paul Tzamaras

Senior Director, Communications and Outreach

American Immigration Lawyers Association

Suite 800

1331 G Street, NW,

Washington, DC  20005-3142

Office:  202-507-7649

Cell:      240-476-4299

E-mail:  gtzamaras@aila.org

 

pastedGraphic.png

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

 

pastedGraphic_1.png  pastedGraphic_2.png  pastedGraphic_3.png  pastedGraphic_4.png

 

 

pastedGraphic_5.png

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

Nice video!

Progress!

Stay tuned!

🇺🇸Due Process Forever!

PWS

04-05-22

⚖️🧑‍⚖️☠️ SEN. SHELDON WHITEHOUSE (D-RI) HIGHLIGHTS RIGHT’S SUPREME TAKEOVER! — My Thoughts On “Agency Capture” By Nativists @ EOIR Under Garland!

 

Senator Sheldon Whitehouse
Senator Sheldon Whitehouse (D-RI)
Official Senate Photo

https://www.theguardian.com/law/2022/feb/22/the-scheme-senators-highlight-rightwing-influence-supreme-court?CMP=Share_iOSApp_Other

David Smith reports for The Guardian:

. . . .

The thread running through Whitehouse’s spoken essays is that the current 6-3 conservative majority on the court is no accident but the product of special interests and dark money – hundreds of millions of dollars in anonymous hidden spending.

The special interests are able to groom young judges, promote them in advertising campaigns and then try to influence them in legal briefs, all lacking in transparency. The outcome is a dire threat to the climate, reproductive rights and myriad issues that touch people’s everyday lives.

Whitehouse chose his title carefully. “It implies that this is not random,” he says. “This is not just, ‘Oh, we’re conservatives, and so we’re going to appoint conservative thinking judges,’ which is the veneer. They would like to maintain this is just conservatives being conservatives.”

Whitehouse suggests that the model of “agency capture”, when an administrative agency is co-opted to serve the interests of a minor constituency, was applied to the supreme court. “Once you’re over that threshold of indecency, it actually turned out to be a pretty easy target. The other construct to bear in mind is covert operations, because essentially what’s happened is that a bunch of fossil fuel billionaires have run a massive covert operation in and against their own country. And that’s a scheme.”

. . . .

Democrats have been criticised for being complacent as Republicans unspooled their 50-year campaign to capture the courts. Whitehouse agrees. “It’s way late. It’s really embarrassing how we let this dark money crowd steal a march on us.”

He observes: “From a political perspective it never mattered as much to the Democratic base as it did to the Republican base because we did not have the history of Roe versus Wade, Brown versus Board of Education [desegregating public schools] decisions that provoked massive cultural objections on the far right.

“So they got highly motivated and we did not but then once we saw this machinery begin to go in operation to capture the court, we never bothered to call it out either. It’s not just that our base didn’t care as much. It’s that we were sleeping sentries.”

Whitehouse is planning at least three or four more speeches about The Scheme. Like his climate series, he hopes that the message will get through: it is time to wake up.

“I hope there’ll be a more general understanding that what’s going on at the court has a lot less to do with conservatism than it has to do with capture and, with any luck, it might cause a bit of an epiphany with some of the judges that they don’t want to be associated with what they’re actually associated with. And the American public will see it for what it is and give us in politics more opportunities to administer a repair.”

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

Read the complete report at the link.

Sen. Whitehouse’s reference to “agency capture” is a perfect descriptor of what has happened at EOIR and in our Immigration Courts. Remade, co-opted, and weaponized by Miller, Sessions, Barr, and Gene Hamilton during the Trump regime, the Immigration Courts now represent a nativist/restrictionist culture, philosophy, and approach to justice, including racial justice, that is far, far out of the legal mainstream.

It’s so far out of the mainstream that even the most conservative circuits and Trump judicial appointees occasionally hand Garland’s poorly performing BIA “its head” on sloppy, poorly reasoned, substandard performance. It’s also light years away from the restoration of the rule of law and humane values promised by Biden and Harris during their 2020 campaign!

“Agency capture” appears to be a “GOP specialty,” that Democrats lack. How many key immigration officials, political or “career,” at DHS and DOJ were “Obama holdovers?” How long did the few who weren’t replaced at the outset last? How much influence did they retain or exercise? Yet, Garland continues to operate the Immigration Courts with largely the same toxic culture and badly flawed personnel he inherited from Sessions and Barr. Nonsensical? Disgraceful? Dumb? You bet!

The situation is aggravated many times over because these aren’t “normal agency decisions.” No, they are essentially life or death decisions in a “traffic court setting” that affect humanity, our future as a nation, and often “dribble over” into discriminatory and biased approaches to minority populations and rights outside the field of immigration!

Another serious aggravating factor is the astoundingly dysfunctional and incompetent “Byzantine Empire Style” agency bureaucracy at EOIR which bears no resemblance to competent, professional court management and administration. 

Not surprisingly, the latter are outside the DOJ’s skill set. Shockingly, however, A.G. Garland failed to “recognize the obvious” and to bring in the needed outside professional experts to straighten it out. 

Even worse, although he essentially “wholly owns” the broken, anti-due-process immigration “judiciary,” Garland has ignored experts’ calls for replacement of the current precedent-setting BIA with judges who are recognized leaders and role models in due process and human rights in the immigration context. 

Nor has he actively recruited and appointed enough experts with NGO, clinical, and other private sector backgrounds to Immigration Judge positions. Further, he has failed to develop and implement a transparent, merit-based judicial selection and retention program to “re-compete” the many “new” IJ positions that were created and maliciously used by Sessions and Barr to “pack” EOIR with anti-asylum bias, often involving judges without expertise or with disturbingly thin due-process/fundamental fairness credentials. 

Developing a fair, transparent, merit-based system, with outside input, to weed-out underperforming judges in a competitive process and, where warranted, to replace them with some of the brilliant and high-achieving immigration/human rights potential judicial talent now “out there in the market place” but largely ignored by the Biden Administration should have been high on Garland’s list. The process and criteria by which these life or death judicial positions are filled remains largely a mystery shrouded in opaque bureaucracy and with no input from those who actually have to practice before EOIR or who have been researching and documenting the abject, deadly failures of the current system! 

With due respect, I think Senator Whitehorse needs to focus some of his attention and ire on the disgraceful performance of the U.S. Immigration Courts under Garland. Unlike the Article IIIs, this Federal Court system could and should have been majorly reformed, restructured, and vastly improved with a more enlightened, courageous, due-process oriented approach by DOJ.

Why doesn’t Senator Whitehouse call up his former Senate colleague VP Harris, who has done a “disappearing act” on immigration and human rights following her tone-deaf excursion to the Northern Triangle? Is he teaming with Chair Lofgren to introduce the Senate version of her Article I Immigration Court Bill? Some of the foregoing could be even more effective in “raising consciousness” and promoting constructive reform than giving speeches to an empty Senate Chamber!

The result of a reformed U.S. Immigration Court should be a “Model Federal Judiciary” — one laser-focused on fairness, scholarship, timeliness, respect, teamwork, due process, fundamental fairness, and best practices! Indeed, that’s what all Federal Courts should be, but are not right now. Not by a long shot! 

The Immigration Courts could and should be a training and development ground for a diverse, high-functioning, practical, due-process-oriented Federal Judiciary all the way up to the Supremes — where failure by right-wing ivory-tower jurists who live “above  the fray” to understand the reality of our broken Immigration Courts and to courageously vindicate the legal, constitutional, and human rights of abused and vulnerable migrants is literally destroying our republic. 

That Garland and the Biden Administration generally are squandering this opportunity is as inexplicable as it is inexcusable! Perhaps Sen. Whitehouse can “light a fire!” 🔥

🇺🇸 Due Process Forever!

PWS

02-22-22

THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️

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

PRACTICE ALERTS

 

Mandatory E-Filing with EOIR Is Now in Effect

Efiling is not permitted for cases with a preexisting paper file, but all new cases moving forward require efiling with ECAS.

Once a case is fully ECAS, you do not need to serve ICE separately. However, you still need to submit a certificate of service that lists ECAS as the means of service. eService/mail can still be used on paper files. eService is the only method of filing for PD requests.

Also, EOIR apparently has not come up with a system for filing motions to substitute counsel in ECAS. The system physically will not let you file a new primary E-28 if there already is an attorney, and you cannot file a motion without an E-28. The workaround so far has been to file a non-primary E-28 and then to ask the court to change it to primary. Hopefully, EOIR will fix this soon.

 

Updated Legal Assistant Directories for NYC (attached)

 

NEWS

 

U.S. to try house arrest for immigrants as alternative to detention

Reuters: The Biden administration will place hundreds of migrants caught at the U.S.-Mexico border on house arrest in the coming weeks as it seeks cheaper alternatives to immigration detention, according to a notice to lawmakers and a U.S. Department of Homeland Security (DHS) official. A 120-day pilot program will be launched in Houston and Baltimore, with 100-200 single adults enrolled in each location, according to the notice, which was sent by U.S. Immigration and Customs Enforcement (ICE) and reviewed by Reuters. See also Immigrant Rights Organizations Call on Biden to Stop Expansion of Surveillance and End the Immigration Detention System as a Whole.

 

The Continuing Impact of The Pandemic on Immigration Court Case Completions

TRAC: As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.

 

Nationwide Labor Pause Planned In ‘Day Without Immigrants’ Protest

LAA Weekly: Valentine’s Day has been strategically selected for the “Day Without Immigrants” protest, as it is a day where an abundance of consumer spending occurs, through labor that is often carried out by immigrants.

 

Quick Fix to Help Overwhelmed Border Officials Has Left Migrants in Limbo

NYT: These migrants were instructed to register with Immigrations and Customs Enforcement within 60 days to complete the process the border officials started. But in some parts of the country, local ICE offices were overwhelmed and unable to give them appointments. So the Haitian family and other new arrivals have spent months trying in vain to check in with ICE and initiate their court cases.

 

US citizenship agency reverts to welcoming mission statement

AP: The new statement unveiled Wednesday by Citizenship and Immigration Services Director Ur Jaddou is symbolic but somewhat restores previous language after the agency removed a reference in 2018 to the U.S. being a “nation of immigrants.”

 

Salvadoran Denied Naturalization Over Pot Dispensary Job

Law360: A Washington federal judge has ruled that a Salvadoran citizen’s U.S. naturalization application was properly denied because of her admission that she distributes marijuana as co-owner of a state-licensed dispensary.

 

EOIR Apologizes After Asking Atty To Delete Tweets

Law360: The U.S. Department of Justice’s Executive Office for Immigration Review apologized on Tuesday to an attorney after asking her to delete tweets about immigration court hearings for people enrolled in the controversial “Remain in Mexico” program.

 

Undocumented parents have weathered a pandemic with no safety net

WaPo: A patchwork of federal aid kept many families afloat during the pandemic, but families with undocumented parents did not qualify for most of it, including unemployment insurance, the stimulus payments, Medicaid and food stamps.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AO issues NOID for Afghan Who Worked for U.S.

Boston AO: A NOID from the asylum office stated that an individual who worked for the U.S. government as a mechanic had not demonstrated a fear of future persecution based on his imputed political opinion. The AO held there was insufficient evidence the Taliban was or would become aware of his imputed political option. The AO also stated the Taliban does not have the capability to persecute all former employees of the U.S. and the applicant had not demonstrated similarly situated people were being targeted. Counsel has submitted a detailed rebuttal with testimony from a US military official, and the applicant’s mother was granted asylum by a different officer.

 

District Court Vacates Two Trump Administration Asylum EAD Rules

AILA: A federal district court vacated the final rules “Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” and “Asylum Application, Interview, and Employment Authorization for Applicants.” (AsylumWorks v. Mayorkas, 2/7/22)

 

Lawsuit against the BIA Levels the Legal Playing Field for Immigrant Advocates

NYLAG: Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October 2022 and will be phased in over several years.

 

2nd Circ. Says BIA Undercuts Precedent In Asylum Case

Law360: The Second Circuit on Wednesday granted a Nigerian man’s petition for review of a Board of Immigration Appeals order that denied him asylum, finding that the agency made several legal and procedural errors and did not adequately explain its reasons.

 

3rd Circ. Says Nigerian Paroled Into US Wasn’t ‘Admitted’

Law360: The federal government properly charged a Nigerian man as inadmissible to the U.S. rather than removable, because his entry to the country on parole constituted an arrival despite his previous admission, the Third Circuit ruled Friday.

 

CA6 on U Visa Waitlisting: Barrios Garcia v. DHS

Lexis: We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed pre-waitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist.

 

9th Circ. Finds Part Of Immigration Law Unconstitutional

Law360: The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment.

 

9th Circ. Rejects Mexican Kidnapping Victim’s Protection Bid

Law360: The Board of Immigration Appeals need only to consider the possibility — not the reasonableness — of an immigrant’s safe relocation back to their home region when weighing protections under the Convention Against Torture, the Ninth Circuit ruled Wednesday.

 

USCIS, Immigrants Get Approval To Bar Juvenile Policy In NJ

Law360: A New Jersey federal judge signed off Wednesday on a class action settlement that would prevent the U.S. Citizenship and Immigration Services from refusing to place young immigrants on the path to a green card based on Garden State family court findings.

 

Foreign Spouses May Work With Feds’ Approval At Border

Law360: U.S. Customs and Border Protection is marking the entry records of certain foreign executives’ spouses to show that they are immediately eligible to work in the U.S. without going through the monthslong process of obtaining a work permit.

 

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

 

EOIR Clarifies Alternative Filing Locations

AILA: EOIR updated its Operation Status website with information clarifying that alternate filing locations are designated for the purpose of filing emergency motions and explaining how it will treat other filings if a court is closed.

 

USCIS Issues Updated Policy Guidance Addressing VAWA Petitions

AILA: USCIS updated policy guidance addressing VAWA petitions, specifically changing the interpretation of the requirement for shared residence. The guidance also affects use of INA 204(a)(2), implements the decisions in Da Silva v. Attorney General and Arguijo v. United States, and more.

 

DHS and VA Launch New Online Resources for Noncitizen Service Members, Veterans, and Their Families

AILA: DHS, in partnership with the Department of Veterans Affairs and Defense, launched an online center to consolidate resources for noncitizen service members, veterans, and their families, including a request form for current or former service members seeking return to the U.S. after deportation.

 

USCIS Updates Policy Guidance on VAWA Self-Petitions

USCIS: We are updating our interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.

We are also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, February 14, 2022

Sunday, February 13, 2022

Saturday, February 12, 2022

Friday, February 11, 2022

Thursday, February 10, 2022

Wednesday, February 9, 2022

Tuesday, February 8, 2022

Monday, February 7, 2022

 

 

 

pastedGraphic.pngpastedGraphic_1.png

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

After two plus decades of largely wasted time, effort, and resources, EOIR finally moves into the era of E-Filing! 

Elizabeth notes one of the “initial workarounds” for motions to substitute counsel. While early glitches are to be expected in any system, this one seems odd because: 1) the system has supposedly been extensively “beta tested;” and 2) motions to substitute counsel have to be one of the most common motions filed at EOIR (particularly with cases often taking many years to complete with the ever-growing 1.6 million case backlog.)

I’d be interested in getting any “practitioner feedback” on how this system (applicable only to newly filed NTAs) is working out for them. You can just put in the “comments box” for this post.

Speaking of backlog, this excellent recent study and analysis from CMS (under “Friday Feb. 11” above) certainly suggests that the majority of the “aged cases” being “warehoused” by Garland’s EOIR relate to law-abiding long-term residents who are already firmly grounded in our society and should be prime candidates for “non-priority” status and removal from the dockets. 

Undocumented immigrants contribute to every aspect of the nation’s life.16 During the COVID-19 pandemic, the case for legalization has become increasingly evident to the public and policymakers due, in part, to the fact that a remarkable 74 percent of the nation’s 7.3 million undocumented workers meet DHS’s definition of essential workers (Kerwin and Warren 2020). As the nation ages and its population over age 65 exceeds that under age 15 (Chamie 2021), the need for immigrant workers will only increase. US fertility rates fell for five consecutive years prior to the COVID-19 pandemic, and the US birth rate decreased by four percent in 2020 (Barroso 2021).17

Legalization programs benefit the larger society: they “raise wages, increase consumption, create jobs, and generate additional tax revenue” (Hinojosa-Ojeda 2012, 191).18 One study has estimated that broad immigration reform legislation, including a legalization program and a flexible, rights-respecting, legal immigration system, would add $1.5 trillion to the US gross domestic product over 10 years (ibid., 176). Another study found that a legalization program would increase the productivity, earnings, and taxes paid by the legalized, resulting in increased contributions to the Social Security (SS) program, which would more than offset the SS benefits that they would receive (Kugler, Lynch and Oakford 2013).

Indeed, the data in the CMS study confirms what many of us have suspected for a long time: That deportation of many of the individuals now occupying the Immigration Court’s mind-boggling docket backlog actually would be a counterproductive “net loss” for the U.S.!

So, why are Garland and Mayorkas letting the backlog fester and ooze disorder and injustice? ☠️ Rather than using largely self-created backlogs to support more “enforcement gimmicks” purporting to lead to the forced removal of many productive members of our society, EOIR is long overdue for some form of the “Chen Markowitz Plan” in anticipation of the types of ameliorative legislation outlined in the CMS study.  

Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Populations Eligible for Special Legal Status Programs and for Legalization under Pending Bills by Donald Kerwin, José Pacas, Robert Warren

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

Donald M. Kerwin
Donald M. Kerwin
Executive Director
Center for Migration Studies — He and his friends at CMS have some great ideas on immigration and human rights backed by some of the best scholarship around! Why are Garland, Mayorkas, and others “tuning them out” while they continue to bungle immigration policy, degrade human rights, and undermine our legal system?

Garland’s disgraceful failure to put a “Progressive A-Team” in charge at EOIR continues to drag down our entire justice system.

Note that Sessions and Barr had no trouble and no hesitation installing their “Miller Time” restrictionist team at DOJ and EOIR despite almost universal outrage and protests from human rights advocates, immigration experts, and some legislators! 

Why do Dems keep appointing AG’s who are too “tone deaf,” clueless, and timid to fully “leverage” the almost unlimited potential of reforming EOIR to be a font of due process, best practices, and scholarly,  efficient judging?

Why do Dems prefer the equal and racial justice “disaster zone” that they have helped to create, aided, and abetted over the past two decades of abject failure and disorder at EOIR?

There is a reason why Chair Lofgren and others on the Hill are pushing for Article I! But, that in no way diminishes or excuses the failure of Garland to make available due process and best practices reforms at EOIR, including a major shakeup of “Trump holdover” judges and managers who aren’t up to the job of running a system “laser-focused” on due process and fundamental fairness!

🇺🇸 Due Process Forever!

PWS

02-15-22

⚖️👎🏽🤮☠️HUMAN RIGHTS GROUPS BLAST BIDEN, HARRIS, GARLAND, MAYORKAS FOR ILLEGAL RETURNS TO COLOMBIA, CONTINUATION OF MILLER’S XENOPHOBIC, DEADLY & CORRUPT TITLE 42 ABUSES OF HUMANITY!

https://bit.ly/3upncgP

Letter to Biden/Harris on Expulsions of Venezuelan Asylum Seekers to Colombia

Like14

 

Tweet

Share

2

RELATED CAMPAIGNS & TOPICS

Refugee Protection

Letter-resource-image-628x365_0-1.jpg

pastedGraphic.png

Dear President Biden and Vice President Harris:

We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.

DOWNLOAD

One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration  placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.

Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.

Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.

As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.

During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.

We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.

Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and  to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.

DOWNLOAD

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

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

Let’s be clear about the equation:

immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good

By failing miserably on the first, the Administration has found itself flailing and failing on the rest.

Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.

Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.

“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?

How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR. 

As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights! https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland

Folks, this is NOT “good government.” Not by a long shot!

There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR. 

Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!

Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.” 

But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!

I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but, EOIR must be the starting place for fixing them. There is no more time to lose! 

Alfred E. Neumann
It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America.
PHOTO: Wikipedia Commons

Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!

🇺🇸Due Process Forever!

PWS

02-04-22

⚖️👩🏽‍⚖️CONGRESS: ARTICLE I IN PLAY, AS CHAIR LOFGREN INTRODUCES “The Real Courts, Rule of Law Act of 2022!” — “Our immigration court system will never be effective as long as it is housed under the Department of Justice.”☠️🤮

Zoe’s Lofgren
Rep. Zoe Lofgren (D-CA)
Chair of the House Subcommittee on Immigration and Citizenship
PHOTO: US House

Here’s the scoop:

Lofgren Introduces Landmark Legislation to Reform the U.S. Immigration Court System

February 3, 2022 Press Release

The Real Courts, Rule of Law Act of 2022 creates an independent ‘Article I’ immigration court, free from the political influence of the Executive Branch

WASHINGTON, DC – Today, U.S. Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, The Real Courts, Rule of Law Act of 2022, a bill that transitions the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution. The bill will ensure that the immigration courts are administered by qualified, impartial judges; have adequate court resources and support services; are defined by transparency and integrity; and are financially independent. The Real Courts, Rule of Law Act of 2022 is co-sponsored by House Judiciary Committee Chair Jerrold Nadler (NY-10) and Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet, Hank Johnson (GA-04).

An office within the Department of Justice, our nation’s immigration court system – known as the Executive Office for Immigration Review – lacks procedural and structural safeguards to protect it against political influence. Immigration judges are not judicial officers – they are lawyers, appointed by the nation’s top prosecutor, the Attorney General. As employees of the Department of Justice, immigration judges are charged with adjudicating cases in accordance with the policies and priorities of the governing administration. Each Administration – Democratic and Republican – has used the immigration courts as a mechanism to shape immigration policy.

“A hallmark of our system of democracy and the rule of law is an independent judiciary. Our immigration court system will never be effective as long as it is housed under the Department of Justice. After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair,” said Chair Zoe Lofgren. “Congress must act by passing The Real Courts, Rule of Law Act to create an immigration court system independent of the Executive Branch. This structural overhaul will strengthen due process and restore faith in the system by taking politics out of the immigration courts for good.”

“Since its founding, our immigration court system has been mired by political interference from both Democratic and Republican administrations,” said Chair Jerrold Nadler. “Our country needs an immigration court system that can deliver just decisions in accordance with the law, not one that is subject to ever-changing political whims. I’m proud to join Subcommittee Chair Lofgren in introducing the Real Courts, Rule of Law Act, which would establish an independent Article I immigration court system consistent with other judicial institutions across our nation. By moving the court out from under the Department of Justice, this legislation will ensure that our immigration court system can effectively prioritize due process and the rule of law.”

“The creation of an independent immigration court would ensure that our immigration judges are no longer subject to the political whims of any particular administration,” said Chair Hank Johnson. “Our current immigration backlog is approaching 1.6 million cases and lacks procedural and structural safeguards to protect the human beings that make up these cases. By establishing an independent immigration court, this bill will ensure impartiality and transparency when it comes to these life and death decisions and allow these judges to administer justice efficiently and effectively. I’m proud to join Rep. Lofgren in introducing The Real Courts, Rule of Law Act of 2022.”

Click here for a one-pager on immigration court reform and The Real Courts, Rule of Law Act.

Click here for a section-by-section summary of The Real Courts, Rule of Law Act.

Click here for full text of The Real Courts, Rule of Law Act.

Bill Details

The Real Courts, Rule of Law Act of 2022 will:

  • Establish an independent immigration court – similar to the U.S. Tax Court – consistent with Article I of the United States Constitution. The newly-formed United States Immigration Court will be comprised of a trial division, an appellate division, and an administrative division.
  • Ensure that qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.
  • Ensure that the United States Immigration Court has adequate resources and support to operate efficiently while giving the Court authority to appoint temporary immigration judges and establish temporary court facilities to ensure the expeditious administration of justice.
  • Improve transparency and accountability in Immigration Court proceedings by requiring publication of all court rules and procedures, as well as precedent decisions and pleadings while protecting confidential information.
  • Improve efficiencies by allowing the Immigration Court to establish its own budget without review by the Executive Branch and empowering immigration judges to control their own dockets and compel agency action that is unlawfully withheld or unreasonably delayed.
  • Strengthen the integrity of immigration court proceedings by giving immigration judges authority to impose civil money penalties for contempt of court.
  • Ensure due process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the Court.

Support

The Real Courts, Rule of Law Act of 2022 is supported by the American Bar Association, American Immigration Lawyers Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Council, Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense, National Immigrant Justice Center,  National Immigration Law Center, Niskanen Center, and Women’s Refugee Commission.

“The American Bar Association has high regard for the mission and goals of the Justice Department, but we strongly support the creation of an independent Article I immigration court system. It is essential that every judge is free to decide cases based solely on the facts and the law, without external pressure or influence,” said Reginald Turner, President of the American Bar Association (ABA).

“This legislation and the effort to rebuild our immigration court system is welcome indeed. For decades, the deck has been stacked against immigrants. Getting a fair day in court is nearly impossible when the immigration courts are under the authority of the nation’s chief prosecutor: the Attorney General. Regardless of their administration or political party, Attorneys General can abuse the extraordinary power they have over the immigration courts and sacrifice due process for expediency.  When that has happened in the past, the most vulnerable people – including asylum seekers, victims of violence, and people deprived of their liberty – have paid a high price. There remains vital work to be done by Congress to reform the immigration law itself—specifically, restoring discretion to immigration judges. But foundational to any fair system is a neutral judge. This bill provides that foundation,” said Jeremy McKinney, President-elect of the American Immigration Lawyers Association (AILA).

“After spending several decades helping develop and advocate for this landmark legislation, the Federal Bar Association commends Chair Lofgren and her colleagues for introducing a bill today that would facilitate a long-lasting solution to separate the politics of immigration enforcement from the needs of immigration adjudication.  Having collaborated with a number of other prominent legal associations to get to this historic point, FBA remains committed to ensuring that we improve access to justice and due process for individuals appearing before immigration judges. The Constitution gives Congress the ability to create new federal courts and with a current backlog of 1.6 million cases, it is clear to our members that the time has finally come to fix a broken and ineffective system,” said Anh Le Kremer, President of the Federal Bar Association.

“The NAIJ applauds the House Judiciary leadership for introducing an Article I Immigration Court bill. Chair Lofgren, Chairman Nadler and Chairman Johnson, in introducing this legislation, are rectifying the historical mistake of having an immigration court housed in a law enforcement agency. Given the many problems facing the Immigration Court, Congress’s leadership in removing the court from the Department of Justice is welcome relief, and is a crucial step in restoring due process and court efficiency to our broken system,” said Judge Mimi Tsankov, President of the National Association of Immigration Judges (NAIJ).

Related Hearings

On January 20, 2022, the Subcommittee on Immigration and Citizenship held a hearing titled “For the Rule of Law, An Independent Immigration Court.” Click here for the full video, witness testimonies, and supporting documents from that hearing.

On January 29, 2020, the Subcommittee on Immigration and Citizenship held a hearing titled “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” Click here for the full video, witness testimonies, and supporting documents from that hearing.

###

Issues:

Immigration

Media

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

Four Horsemen
The BIA’s “take no prisoners” approach to asylum seekers has helped bring the Immigration Courts into disrepute, leading some reviewing courts to suggest that EOIR has crossed the line from “fair and impartial adjudication” to “advocates for DHS Enforcement.”  That’s not news to experts and human rights advocates. Despite Biden’s campaign promises to restore justice for migrants, Garland has failed to usher in a new era of “due process and fundamental fairness for all.” 
Albrecht Dürer, Public domain, via Wikimedia Commons

As this bill moves forward, the ongoing chaos, unfairness, disorder, dysfunction, dehumanization, and abysmal quality of decisions flowing from Garland’s Clown Courts 🤡 will get more and more attention and memorialization! 

It would behoove Garland to clean house at EOIR and bring in some real judges, immigration/human rights/due process expertise, and competent judicial administrators to prepare the system for transition to Article I.

In this respect, the bill contains this provision, requiring the President and the Appellate Division ensure:

‘‘(2) the corps of immigration judges—

‘‘(A) is comprised primarily of individuals with prior legal experience in immigration law; and

‘‘(B) to the extent practicable, reflects a balance of individuals with prior legal experience in the public sector and private sector; and ‘‘(3) candidates are selected without regard to political party affiliation or perceived political ideology.

Certainly not the way EOIR has been run by DOJ politicos over the past two decades! And, to date, Garland has done little to bring about long overdue personnel changes, due process, fundamental fairness, decisional independence, quality, and professionalism! 

🇺🇸Due Process Forever!

PWS

02-03-22

🤯🆘GARLAND’S MAJOR “ACHIEVEMENT:” BUILD BIGGER IMMIGRATION COURT BACKLOGS FASTER! — “Philly-Sized” Backup Continues To Mushroom! 🍄 

 

Transactional Records Access Clearinghouse

Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of Cases

The U.S. Immigration Court system is currently staring up a mountain of pending cases that at the end of December 2021 reached 1,596,193 — the largest in history. If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations — all the way back through at least the George W. Bush administration — have failed when they tried to tackle the seemingly intractable problem of the Immigration Court “backlog.”

Yet a disturbing new trend has emerged during the Biden administration that demands attention: since the start of the Biden administration, the growth of the backlog has been accelerating at a breakneck pace.

Quarterly growth in the number of pending Immigration Court cases between October and December 2021 is the largest on record. In just this short period, the backlog increased by almost 140,000 cases. This far exceeds any 3-month increase during the most dramatic period of growth of the Trump administration. These findings suggest that the Immigration Courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that Immigration Judges now face.

The partial Court shutdown during the COVID-19 pandemic has, of course, contributed to the backlog’s growth. However, the main contributor is the recent deluge of new cases filed by the Department of Homeland Security (DHS). If the current pace during the first quarter of FY 2022 of newly arriving Notices to Appear (NTAs) continues, the Court will receive 800,000 new cases — at least 300,000 more than the annual total the Court has ever received during its existence.

For full details, including a review of the history leading to this juncture, read the full report at:

https://trac.syr.edu/immigration/reports/675

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors

Transactional Records Access Clearinghouse

Syracuse University Peck Hall

601 E. Genesee Street

Syracuse, NY 13202-3117

315-443-3563

trac@syr.edu

https://trac.syr.edu

The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University.

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

What’s Garland’s next target: a backlog bigger than Chicago, New York, Los Angeles?

Garland was warned in advance about the extreme dysfunction in his courts and the urgent need to make fixing it one of his highest priorities. Instead of immediately bringing in progressive experts, replacing the BIA, hiring better judges and innovative administrators to address the backlog, attack poor judicial quality, and curb abuse of the system by DHS, Garland has simply failed to take due process, fundamental fairness, and best practices seriously. He has also compounded the disaster by using “proven to fail” enforcement and deterrence gimmicks and retaining poor quality managers and judges packed into the system by Sessions and Barr.

The worse the dysfunction gets under Garland, the harder it will be to convince the “best and brightest” to undertake the challenge of fixing it! 

Also, time’s a wasting. The first year of any Administration is the time to get things done. Garland has already squandered that precious time!

This system is totally out of control and crushing the lives and futures of those caught up in it. Sadly, nobody in power in any of the three branches seems interested, motivated, or courageous enough to fix it. That’s bad for our democracy!

🇺🇸Due Process Forever!

PWS

01-18-22

⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

Yilun Cheng
Yilun Cheng
Immigration Reporter, Columbus Dispatch
PHOTO: Twitter
Woman Tortured
Attorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.dispatch.com/story/news/2022/01/15/discipline-system-immigration-judges-lacks-transparency/9157927002/

In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.

The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.

Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.

But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.

Juan is not alone in his grievances. In May 2021, the Ohio chapter of the American Immigration Lawyers Association submitted a group complaint against Riley to the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice that oversees immigration courts.

Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts. 

But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.

Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.

. . . .

Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.

“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”

. . . .

Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.

In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.

In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.

“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”

Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.

“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”

. . . .

Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.

“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”

There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.

“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”

. . . .

The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.

The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.

The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.

“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”

. . . .

Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.

ycheng@dispatch.com

@ChengYilun

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

Read Yulin’s full article at the link.

First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist. 

https://immigrationcourtside.com/2021/01/18/⚖%EF%B8%8F🗽🇺🇸slavin-benitez-kowalski-schmidt-speak-out-on-broken-courts-yilun-cheng-reports-for-borderless-magazine/

Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!

So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?

The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.

Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!

Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.

Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.

Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.” But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!

Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.

Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!

The TRAC “national average” for asylum denials by IJs during this period was 67.6%.

So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.” 

As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.

All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input. 

Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process. 

Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!

Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.  

The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench. 

While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.

He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)  

Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!

Indeed, a full year the SF Chron’s Tal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.” 

From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?

Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system!  And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”

As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!

🇺🇸Due Process Forever!

PWS

01-15-22

UPDATE:

The news isn’t all bad from Cleveland. Dan Kowalski over at LexisNexis reports that Cleveland Judge Jennifer Riedthaler-Williams (also a “high asylum denier — 94%) terminated without prejudice a removal case based on a defective Notice to Appear. https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/cleveland-ij-terminates-proceedings-defective-nta

Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡

There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!

The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!

🤯👎🏽☠️🤮🆘STATS SHOW YET ANOTHER PREDICTABLE, HORRIBLE GARLAND FAILURE @ EOIR: “New Research Finds that Dedicated Docket Leads to High Rates of Deportation, Low Representation Rates, and Wastes Immigration Judges’ Time” — Duh!

 

From Austin Kocher:

https://austinkocher.substack.com/p/biden-administrations-dedicated-docket

. . . .

These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.

. . . .

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

Read Austin’s findings at the link.

The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team. 

Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better. 

🇺🇸Due Process Forever!

PWS

01-14-22

⚖️FINALLY, HOUSE TO EXAMINE GARLAND’S DYSFUNCTIONAL, MISMANAGED, LEADERLESS IMMIGRATION “COURTS” & NEED FOR DUE-PROCESS-FOCUSED REFORMS! — Tal Kopan Reports For SF Chron!

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Read: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it

WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.

The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.

Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.

Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.

Read more: https://www.sfchronicle.com/bayarea/article/The-nation-s-immigration-court-system-is-a-16773646.php

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

Read Tal’s complete report at the link.

Welcome and long, long, long overdue news! But, is it too little, too late?

Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy. 

Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from experts  who understand the full legal and human effects of Garland’s complacent and ineffectual leadership. 

It will also come a year after The Chronicle reported that immigration court policies and structure have allowed sexually inappropriate behavior and misconduct among judges and staff to flourish, which prompted the Justice Department to kick off a study of how to overhaul its procedures.

The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.

In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!

The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance. 

Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.

Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it. 

The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.

Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.

In other words, Garland has been a disaster for those committed to due process, racial justice,  equal treatment under law,  and a diverse, welcoming, stable American democracy.

Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!

🇺🇸Due Process Forever,

PWS

01-14- 21

🤮👎🏻SHOCKING BETRAYAL@ “JUSTICE” — GARLAND DISSES PROGRESSIVE EXPERTS WITH SECRET APPOINTMENTS OF 17 UNQUALIFIED IMMIGRATION JUDGES! — New AG’s Open Contempt For Racial Justice, Due Process, Human Rights Enrages Advocacy Community Who Believed & Supported Biden-Harris Campaign Pitch!  — THE REINCARNATION OF “DEEP THROAT” @ EOIR “BLOWS WHISTLE” ON NEW AG’S ATROCIOUS FAILURE TO TAKE SERIOUSLY MOCKING OF DUE PROCESS, INSTITUTIONALIZED RACISM, MISOGYNY, LACK OF SCHOLARSHIP, AVERSION TO PRACTICAL PROBLEM SOLVING IN AMERICA’S DEADLY, DYSFUNCTIONAL STAR CHAMBERS!⚰️☠️🏴‍☠️

Deep Throat
Reincarnated @ EOIR? — Creative Commons License
Deep Throat
Deep Throat — Well, there used to be theaters below the EOIR HQ Tower @ Falls Church, but I don’t think they ever showed this feature film. Is “DT” a girl, a boy, a man, a woman, a group, or something else? We’ll never know! The “Adults Only” tag is a reminder that “adult supervision” remains missing @ the EOIR Clown Show. And, apparently, Judge Garland has no intention of providing it! — Creative Commons License

 

Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

Recently, some of America’s top legal minds were “wordsmithing” their “practical scholarly” advice on what actions Judge Garland should take to begin straightening out his EOIR mess. Common sense steps to slash the largely self-created Immigration Court backlog of an astounding 1.3 million cases actually could and should have been taken within hours of Garland’s swearing in as Attorney General. But, unknown to these experts, the battle they steadfastly had been fighting for the past four years in behalf of due process, common sense, and humanity in a broken system already was lost.

Basically, Garland and his team had secretly delivered the “big middle finger” to progressives earnestly seeking to assist and guide them in the right direction on long overdue reforms at Garland’s incredibly backlogged, totally dysfunctional, anti-due-process, Immigration “Courts” that don’t fit any known American definition of “court.” For while the wheels of scholarly, problem-solving brainpower were grinding away, Garland had cavalierly and clandestinely handed out 17 of the most important (and certainly most readily available to progressive judicial candidates) Federal Judicial positions to unqualified insiders and prosecutors basically “in the Stephen Miller White Nationalist pipeline.” Adding insult to injury, Garland and his lieutenants covered up their disgraceful actions. But, thanks to a reincarnated “Deep Throat” @ EOIR (see, Watergate for newer generations), we now know the truth.

According to “Deep Throat 2021,” (“DT-21”) it’s worse than I previously thought about Immigration Judge appointments. (And, I thought it was bad.) Garland actually secretly appointed 17 new IJs in April, but EOIR hasn’t released the names publicly because they (rightly) fear “the blowback” from Dems and progressives. 

So, who is Team Garland” trying to please? “Gauleiter” Stephen Miller? “Billy the Bigot” Barr? Gene Hamilton? Donald Trump? Jeff “Gonzo Apocalypto” Sessions? Chad “Wolfman” Wolf? Ken “Cooch Cooch” Cuccinelli? “Teddy the Traitor” Cruz? Tom “Blacks & Hispanics Should be Pickin’” Cotton? 

The 17 include some for the VTC black box “court” in Richmond. The only one that went public was a story a judge himself placed. That’s apparently the one that Dan Kowalski and I picked up. According to sources, none of Garland’s new judges are good for due process or for progressive, expert, independent judging.

Also, there’s a rumor that the open BIA position is going to go to an “EOIR insider,” not someone from the outside who could help restore due process and fundamental fairness.

Let’s see, so far the Biden Administration has had exactly zero progressive Federal Judges confirmed by the Senate. Meanwhile, over at DOJ, Garland has handed out these 17 powerful judgeships with life or death authority serving on the front lines of racial justice in America to non-progressives apparently recommended and tapped by his restrictionist predecessor.

Make sense? Only if you’ve watched past Dem Administrations’ inept handling of the Immigration Courts.

In positive news, there’s “internal chatter” that EOIR Deputy Director Carl C. Risch, a political hack “burrower” from the Trump Administration, is leaving EOIR.

But, “DT-21” is still gravely concerned that “Millerite” BIA Chair David Wetmore (Maury Roberts must be turning over in his grave) has yet to be removed with his “probationary period” set to expire at the end of this month. What, exactly, have been Wetmore’s contributions to human rights scholarship, “applied due process,” fundamental fairness, racial justice, and fair treatment of female asylum seekers that justify his continued tenure as essentially the “Chief Justice of Immigration?”

Garland’s malfeasance at EOIR is not just disappointing, but totally outrageous! On Tuesday, he disingenuously asked the House for more money to promote civil rights while running Star Chambers of institutionalized racism that are undermining the American justice system at the critical “retail level.”

Star Chamber Justice
“Civil Rights” in Garland’s Star Chambers have a peculiar meaning! — Creative Commons License

 

Those advocates who almost single handedly kept the American justice system afloat by successfully challenging many of the unconstitutional racist actions of the Trump immigration kakistocracy once again find themselves “on the outside looking in.” Meanwhile, Judge Garland, who was hiding out above the fray @ the DC Circuit, treats them as “chopped liver” while continuing White Nationalist, anti-due-process policies and precedents initiated by Trump and his cronies.

How out of touch is Garland’s proposal to the House yesterday to address the Immigration Court backlog by casting 100 new Immigration Judges into this mess? (Presumably, these positions will be handed out “like candy” to more non-expert, non-diverse, non-due-process oriented insiders and former government prosecutors.) Well, even with many more Immigration Judges on the bench (more than twice as many as at the end of the Obama Administration), it’s been about two decades since EOIR has decided more cases than it has docketed! That’s how “Aimless Docket Reshuffling” by DOJ politicos and EOIR bureaucrats builds uncontrollable backlogs!

Assume the highly unlikely, that under Garland, without any more quotas, corner cutting, or other anti-due-process gimmicks, the existing nearly 600 judges could keep “even” with new filings. Then, once selected, trained, and on duty (a process that took the Obama Administration an astounding average of two years), “Garland’s 100 new judges” could devote themselves to “backlog reduction.” At the DOJ’s quota of 700 cases per judge, the new judges could decide 70,000 cases per year. At that rate, it would take them approximately two decades (or five 4-year Administrations) to “wipe out” the backlog.

Sound like a plan? Only if you don’t understand the fundamental, endemic problems plaguing EOIR and have no “real life experience” representing individuals whose hopes, lives, and futures are being ground to dust by EOIR malfeasance on a daily basis!

Folks, this has to stop! Keep pressing those constitutional arguments that eventually will bring Garland’s corrupt, dysfunctional system to a screeching halt. And keep pushing for legislation to take this ungodly mess out of the DOJ. Also, keep reminding President Biden who helped get out the vote and get him his job. And, where is our African/Asian American/daughter of immigrants Vice President while this outrage at “Justice” is playing out?

How do supposedly progressive women legal luminaries like Lisa Monaco and Vanita Gupta justify their role in Garland’s misogynist, due process farce @ EOIR?

Woman Tortured
“She struggled madly in the torturing Ray” — Lisa Monaco & Vanita Gupta have wandered into a strange vision of “justice” for refugee women of color @ “Justice!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

As for “DT-21,” he/she/them remains as enigmatic, unverifiable, unabashed, and unafraid as ever! This is a 21st Century “patriot” tired of the abuse of due process, racism, incompetence, and misogyny that EOIR has fostered over Administrations of both parties. EOIR under Garland is a progressive’s continuing nightmare!

Does “DT-21” lurk in the shadows of a parking garage, beyond the view of security cameras, as did the famous 1970’s namesake? Or, at the outskirts of an interstate rest area? Perhaps in a dark unwatched corner of an overcrowded Zoom chat room?

And, while you’re at it, say a prayer for Linda Lovelace (1949-2002), the original “Deep Throat” (1972), who later said she was an abused spouse coerced into a career as an adult actress that she eventually rejected. Somehow, there is a tie-in between Lovelace’s exploitation in the 1970s and the systemic mistreatment of asylum seeking domestic violence victims that went into high gear during the Trump regime and continues unabated under Garland! Interestingly, before her untimely death in 2002, Lovelace became an anti-porn activist who testified before the Attorney General’s Commission on Pornography (a/k/a “The Meese Commission”) in 1986.

Stay tuned for more “truth from the Tower.” You certainly won’t get it from “Team Garland.”

Due Process Forever!

PWS

05-04-21

 

POWER FAILURE @ GARLAND’S DOJ THREATENS LIVES, WASTES MONEY, ENDANGERS BIDEN’S SOCIAL JUSTICE AGENDA, TURNS ALLIES INTO OPPONENTS! — NBC News “Gets It!” — Why Doesn’t Judge Garland? — Unqualified Trump/Miller “Burrower” Carl C. Risch Draws Fat Salary From Judge G. @ EOIR As Asylum Seekers, Battered Women, People Of Color Continue To Be Abused In His “Star Chambers!” — Outrage At Garland’s Lousy Performance On EOIR Reform Grows Among Members Of The Due Process Army!

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

https://www.nbcnews.com/news/amp/ncna1262234

By Adam Edelman @ NBC News:

. . . .

Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.

One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.

His is at least the second conversion in the last year to land at the EOIR, which conducts removal and deportation proceedings in immigration courts across the country.

Recommended

DONALD TRUMP

Documents show high number of permanent job requests from Trump appointees in final year

“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”

Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.

. . . .

**************
Read the full article at the link.

So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!

Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?

He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?

Star Chamber Justice
Judge Garland: “Go faster Carl and David (Garland BIA Chair Wetmore), see how much it takes to make this worthless respondent scream! Remember what your mentor Stephen Miller taught you about the lives and rights of ‘the other.’ Why do you think I’m paying you the ‘big bucks’ and letting you ‘burrow in’ if not to punish and deter those who dare seek due process and humane treatment in MY wholly-owned Star Chambers! I couldn’t have done this at the DC Circuit, but here there are NO RULES, except those we make up for our own benefit, and I aim to keep it that way!”

Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?

Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!

That would also have sent a powerful  “signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR. 

Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.

Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts. 

They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency. 

Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit and  hire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer! 

Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

Garland should already have hired Professor Michele Pistone (Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.

Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.

Could it get any worse? How? 

Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice. 

Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneys during the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!

How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!

I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.

I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!

🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!

PWS

04-11-21