"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Statutes are so totally annoying! Enforcing them is above our pay grade, if it burdens our ‘partners’ at DHS Enforcement! But, we’ll ‘throw the book’ at individuals for anything! Seems fair to us!” https://www.flickr.com/photos/rasputin243/ Creative Commons
The Supreme Court’s decisions in Pereira and Niz-Chavez, along with the text and structure of the statutory provisions governing in absentia removal orders and Notices to Appear, unambiguously required the government to provide Singh with a Notice to Appear as a single document that included all the information set forth in 8 U.S.C. § 1229(a)(1), including the time and date of the removal proceedings. Because the government did not provide Singh with statutorily compliant notice before his removal hearing, Singh’s in absentia removal order is subject to recission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s petition on that ground, do not reach his exceptional circumstances argument, and remand to the BIA for further proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.
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No surprise to “Sir Jeffrey” Chase, me, or experts. What is “below the radar screen” here is how the BIA’s “pattern or practice” of intentional misinterpretation of this very clear statutory provision over three Administrations and in a number of situations has fed the backlog.
One of the “gimmicks” used by DOJ and EOIR to short-circuit due process has been to use bogus “in absentia” orders to complete cases without real hearings and without doing much work while creating a “myth of non-appearance” by asylum seekers. Indeed, under Garland whole dockets were set up with the expectation that individuals would not appear. Agency officials then “cheered” having produced these bogus “final orders.”
It would be unusual if ANY of those subjected to this process under a Garland received “compliant NTAs” sufficient to support in absentia orders! Even with these “gimmicks,” and many more judges, haphazardly selected and often lacking expertise, the backlog has mushroomed.
In truth, asylum seekers appear for their hearings at a rate approaching 100% provided that they get proper notice, understand the process, and are represented. A competent Attorney General would take this empirical data, work with legal services groups, and develop a process to comply with the statute, improve the notice system, promote universal representation, and reduce in absentia hearings.
The obvious first step would be to absolutely require DHS to comply with statutory requirements in issuing Notices to Appear and to impose meaningful sanctions and consequences for the failure to do this. To the extent that the failure to comply is a function of the EOIR/DOJ bureaucracy, those bureaucrats and politicos responsible should also be held accountable by the Immigration Courts.
That’s what fair, impartial, independent judging is supposed to be about! But, Garland, like his predecessors, has tried to “gimmick” his way out of providing fair hearings as required by the statute and our Constitution while ignoring “best practices.”
Does anyone seriously think that a group of “real appellate judges” — experts committed to fair and impartial interpretations that advance due process while promoting best practices — would have come up with the Laparra nonsense? No way!
Yet given a chance to materially improve EOIR’s performance, Garland has chosen the “quality, excellence, and due process for all is optional, at best” approach of his predecessors, even if shying away from their overt weaponization of EOIR against migrants.
Remember, when Garland and company inevitably attempt to deflect or shift blame for their backlogs and “Aimless Docket Reshuffling” to the victims, those stuck in his dysfunctional system and their lawyers, this backlog is largely self-created by folks who have consistently ignored expert advice and input while failing to install competence, expertise, and demonstrated commitment to guaranteeing fairness and due process for all into a broken, biased, and intentionally unfair system!
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.
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.
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!
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!
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.”
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).
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!
The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.
As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court. Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”
However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs. The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear. That second document might be sent weeks, months, or even years later.
As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms. An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers. Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.
However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter. According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.” A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear. However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document. The BIA nevertheless long stood firm in its conviction that a document which provides as much information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”
Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal. One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3 So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status. In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.
The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.
The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6 In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.
Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts. For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.
The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8 Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez. Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document. Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9
The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10 The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well. The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.
Anyone unable to guess the BIA’s response has not been paying attention. The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.
How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary? Please try to follow along as we review the Board’s explanation.
First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.” The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11 The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”
The Board employed a novel approach here. It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.” But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12 And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages. Why is that? To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13
Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish. However, by the time the ship reached shore, only fish of legal size remained on board. After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.
Fish would meet the dictionary definition of “tangible objects.” However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14 As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents. So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.
This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15 to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion. It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates. In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article. The only similarity I can see to Yates is that what the Board did seems fishy.
However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument. As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.” Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…” A notice to appear! Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.
Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.
The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit. In its decision in Pereira, the Supreme Court said:
If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16
We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17
Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it. After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18
Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires. Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.
Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land. Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19 The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement? What a poor choice of words! What we really meant to say was, ‘the absolutely very first time and place ever set.’ Wasn’t that obvious? We feel so foolish. Please just interpret this any way you see fit.”
The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20 Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board. Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21
Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21 I believe that the same can be said of the Board’s decision in Laparra. It will be interesting to see if this issue reaches the Supreme Court for a third time. If so, one should wonder why the Board might expect a different result.
Notes:
28 I&N Dec. 425 (BIA Jan. 18, 2022).
8 U.S.C. § 1229b(b)(1)(A).
8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”
To be clear, the government is capable of providing all required information in a single NTA. EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014. And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.
Matter of Laparra, supra at 430.
Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”
Id.
Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!
Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,” “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!
Tal Kopan Washington Reporter, SF Chronicle. She exposes Garland’s mismanagement of EOIR!
At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.
At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!
Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm. Appointed by a Democrat, he runs the DOJ largely with Trump holdovers, no accountability, and as if Stephen Miller were still looking over his shoulder. The result corrodes the “retail level” of justice in our Immigration Courts and threatens to de-stabilize our entire legal system!
No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace!
The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes!
And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!
But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!
As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”
That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.
Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure!
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
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:
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:
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.
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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!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys 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
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.
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
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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.
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’sTal 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!
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!
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.
. . . .
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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.
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.
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 expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
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!
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
IMMIGRANT LEGAL DEFENSE
FOR IMMEDIATE RELEASE January 10, 2022
Contacts:
Immigrant Legal Defense
Ilyce Shugall, ilyce@ild.org, (415) 758-3765
Siobhan Waldron, siobhan@ild.org, (510) 479-0972
Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980
Omar Ameen Files Federal Lawsuit Seeking His Release
After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism
San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.
After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.
Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.
“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”
“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.
“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”
###
Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.
The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.
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Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.
To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).
“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”
One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.
It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.
In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.
He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.
But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.
It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”
Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.
Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️
Hon. Dana Leigh Marks U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.”
😎🇺🇸🗽⚖️👩⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”Movement For Judicial Independence, Saved Thousands of Lives Over Career OnBench Spanning More Than Three Decades!
By Paul Wickham Schmidt
Courtside Exclusive
Jan. 9, 2022
Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.
In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.
Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”
Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.
Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).
There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”
Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.
Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.
During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.
Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.
The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”
In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.
Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!
NPR: President Biden had an ambitious agenda to overhaul the nation’s border policies. But as the end of the year approaches, many of those proposals have been blocked, reversed or simply abandoned.
Reuters: The Biden administration on Wednesday asked the U.S. Supreme Court whether it needed to continue to implement a Trump-era policy that has forced tens of thousands of migrants to wait in Mexico for the resolution of their U.S. asylum cases. See also ‘Remain In Mexico’ Renewal May Bring More Solo Migrant Kids
AP: Since the U.S. withdrawal, U.S. Citizenship and Immigration Services has received more than 35,000 applications for humanitarian parole, of which it has denied about 470 and conditionally approved more than 140, Victoria Palmer, an agency spokesperson, said this week. See also Months later, Afghan evacuees abroad and at US bases still wait to be resettled.
KQED: Advocates say the current system has more safeguards for migrant families and isn’t placing them in detention facilities, but the accelerated pace still makes it tough for asylum seekers like López to find legal representation.
Law360: Federal courts in 2022 will grapple with immigration law questions ranging from the extent of the president’s authority to set immigration enforcement priorities to federal courts’ ability to review immigration decisions made by the executive branch. Here, Law360 breaks down the cases to watch.
ImmProf: The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the “Remain in Mexico” program.
CA2: In light of the recent surge in Covid-19 infections, beginning January 4, 2022 oral arguments will be conducted remotely, by Zoom or teleconference.
LexisNexis: Lima-Gonzalez v. Garland “Lima-Gonzalez’s NTA did not contain the information required to trigger the stop-time rule. See Niz-Chavez, 141 S. Ct. at 1478-79, 1485; see also § 1229(a)(1)(A)–(G). Neither did any of the subsequent notices of hearing. As a result, the Government has not furnished Lima-Gonzalez with the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct…
WaPo: Three Illinois counties with such federal agreements faced a Jan. 1 deadline to end contracts. While one in downstate Illinois complied last year, two others are involved in a federal lawsuit challenging the law. The case was dismissed last month, but a federal judge on Thursday granted an extension while an appeal is considered. Authorities in McHenry and Kankakee counties now have until Jan. 13.
AILA: DOS proposed rule which would raise several nonimmigrant visa application processing fees, the fee for the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee. Comments are due 2/28/22. (86 FR 74018, 12/29/21)
AILA: USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)
AILA: Effective December 31, 2021, 12:01 am (ET), Presidential Proclamation 10315 was revoked, thus rescinding travel restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. Vaccine requirements remain in effect.
AILA: USCIS stated that healthcare workers with a pending EAD renewal application, Form I-765, and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD applications. Proof of employment will be required.
Somalia: Situation of ‘Westernised’ Returnees (AFR2021-16)
Mexico: Persecution by and local/national presence of Cartel Jalisco and Familia Michoacana (AME2021-17)
Afghanistan: Treatment of Family Members of Human Rights Activists and Former Government Supporters after the Taliban Take-over (ASI2021-13)
Afghanistan: Availability of Psychiatric Treatment for Returnees with Mental Health Conditions and Treatment of Returnees with Mental Health Conditions by the Taliban (ASI2021-12)
Egypt: Opposing Female Genital Mutilation (FGM), Social Impact, and Availability of State Protection (MEN2021-18)
Egypt: Christians in Egypt & Obtention of Citizenship (MEN2021-17)
EOIR: Appearance Requirements at the New York – Varick Immigration Court (attached)
The problem with “ADR” @ EOIR is chronic! It’s one that Garland seems determined to repeat, despite ample advice to the contrary.
Also, he’s ignored the availability of many “practical experts” on the outside who, if appointed to key EOIR positions, could have helped him solve this without stomping on due process (although, I admit the solution would have been easier in March 2021, when Garland was sworn in as AG, than it is after 9 months of his making it worse — not to mention that his “defiant tone-deafness” has probably “turned off” some of the top-flight talent he needed to “reach out” to). As the KQED article points out:
“But there’s a lot of room for improvement, and I don’t know if the people that are being named to supervise this actually know what’s happening in the trenches.”
Duh! That’s what all of us have been saying. Truth is, they aren’t the right people, and they don’t know what’s happening. Not by a long shot!
I also understand why Torres, who’s trying to maintain a relationship with Garland’s “Clueless Crew” is trying to be charitable.
But, as someone not currently “out there in the trenches,” I don’t have to be so reticent. So, I’ll say what she can’t. This is a totally unacceptable and inexcusable performance from Garland!
Another reason why this program is a massive failure is that, like their ADR-promoting, backlog-building predecessors, Garland & Mayorkas started this misguided and mishandled program without seeking the advice, counsel, and support of the pro bono lawyers who have to staff it to make it work!
Think of the total absurdity of what Garland is doing here! While a pro bono (or low bono) lawyer is having already prepared cases “orbited” years out on the docket (a process that usually requires re-preparation of the entire case), the phone is ringing off the hook with desperate, perspective new clients given unrealistically expedited hearing dates that should have been used for the cases “orbited” to the end of the docket.
Also, having not practiced privately for many years, Garland appears to have forgotten the Code of Ethics.
Attorneys are obligated not to take on work (even pro bono work) that they can’t professionally and timely handle.
Yet, Garland is pushing them to do exactly that! The choice is let folks try to prepare their own cases (literally tantamount to a “death sentence” in many cases); or
Take on work you can’t handle (a clear ethical violation that could have the same unfavorable result for the client).
There actually are ways of working with outside experts to increase pro bono representation. One of the most promising is the the amazing VIISTA Program created and run by Professor Michele Pistone at Villanova Law to train non-attorney “Accredited Representatives” to handle pro bono asylum cases.
I have no knowledge that Garland or anyone at EOJ/EOIR has ever reached out to Professor Pistone, despite recommendations that Garland do so.
Worse yet, Garland has allowed his “EOIR Clown Show” to also create a “new backlog” in the approval process for Accredited Representatives! Talk about clueless, counterproductive mismanagement!
Garland’s mis-handling of EOIR and his new round of “Aimless Docket Reshuffling” raises serious issues about his own performance.
Whatever happened to Democratic oversight of EOIR in Congress? Why is Garland getting a “free pass” on mismanagement of EOIR, his furtherundermining of Due Process in Immigration Court, and his disrespectful treatment of the immigration pro bono and low bono bar?
KAYATTA, Circuit Judge. This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court’s declaration that noncitizens “detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence.” Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court’s declaration as advisory. Our reasoning follows.
And, he didn’t disappoint, at least on that score!
No sooner was the ink dry on my last post, than Ol’ Merrick gave me a classic example of why come “panic time” next Fall, when the Dem bigwigs come knocking on the door asking their “old reliable” progressive base to open their pocketbooks and get out the vote, they might find that the windows are dark and nobody’s home! If you don’t exist for the first 19 months of a Dem Administration, it’s hard to see why you wouldn’t be “on vacation” for the next three!
If Dems want to continue as a viable force in American politics, at some point they will need leaders who recognize the difference between “political strategies” and “values.” Standing up for the human and due process rights immigrants and all other “persons” in the U.S. is the latter, not the former!
To reiterate Garland’s position in this and related cases:
No due process for immigrants;
Keep the “New American Gulag” full of non-dangerous individuals;
Promote wasteful litigation, inconsistency, and chaos in my wholly-owed Immigration Courts that continue to operate as if “Gauleiter Stephen” were still calling the shots, and clutter the Article IIIs with my poor work product.
Nice touch! (Although, to be fair, it’s the same regressive, anti-due process, racially tinged position taken by both the Obama Administration and the Trump regime.)
Seems like an Administration that claims to be litigating, to date not very successfully (surprised?), to vindicate the voting rights and civil rights of African-Americans, Latinos, and other minorities might want to rethink arguing for the “Dred Scottification” of migrants, primarily persons of color. Maybe, some right-wing Federal Judge will start citing Garland back to Garland to say that “all persons aren’t really persons.” Sounds like something Rudy would say on a Sunday talk show (except that nobody invites him any more).
“Let’s see, if ‘humans’ are ‘persons,’ and ‘all persons’ have Constitutional rights to due process, then immigrants must not be ‘humans!’ Or, maybe we should argue that they are only 3/5 of a ‘person’ with half the rights! Chief Justice Taney would be. proud of me!” PHOTO: Wikipedia Commons
And, if you are wondering what the 34 pages of opaque legal gobbledygook and all out assault on logic and the English language in the majority opinion means, I’ll simplify it.
“We think it’s reasonable and appropriate that you plaintiffs who admittedly have had your Constitutional rights systematically violated by your litigation opponent should be required to seek redress on a case-by-case basis before a dysfunctional ‘court’ wholly-owned, staffed, and operated by your opponent located within a Government bureaucracy that has been litigating against your Constitutional rights over three Administrations!”
There, you have it! 34 pages of intentionally impenetrable “judgespeak,” legalese, and doublespeak condensed to one sentence of fewer than 65 words!
Anybody (besides me) think that maybe, just maybe, there could be a Constitutional problem with “courts” owned and operated by a litigating party? Certainly seems above Garland’s pay grade to trifle with such trivialities, even when human lives and freedom are on the line.
Nope, better to just regurgitate the “Miller Lite” positions from the “restrictionists’ playbook” left behind by your Trumpy predecessors. And, for a good measure, why not even use some of their lawyers to argue them? But, strangely, those folks don’t seem to be very convincing when, on rare occasions, they are sent out to argue for more humane and reasonable treatment of immigrants! Perhaps their hearts, and heads, just aren’t in it.
My congrats to Circuit Judge Lipez (concurring and dissenting), the only one to actually get this one right and be able to explain it in understandable terms. When you have the right answer, you don’t have to obfuscate as much to cover up your fuzzy thinking (or lack thereof).
Gotta love it! Garland runs an unconstitutional bond system that infringes on individuals’ right to freedom, while improperly shoving those not accused of crimes into his “New American Gulag.” Yet, the panel manages to talk itself out of granting effective relief! Truly remarkable!
If the judges in the majority had actually practiced before the Immigration Courts they might know:
1) Bond cases are hard to appeal because the IJ isn’t required to provide a final rationale for his or her decision until after an appeal has been taken;
2) By regulation, bond hearings aren’t even required to be “on the record” (although many of us chose to nevertheless put them on the record for the convenience and protection all concerned);
3) The BIA has a “general practice” of not adjudicating bond appeals by respondents until after the detained merits hearing has taken place, whereupon the BIA finds the bond appeal to be “moot;”
4) OIL often encourages DHS to release individuals who sue in District Court to moot the case.
I’m sure that Garland’s BIA which has, on occasion, blown off the Supremes and declined to follow Circuit Court orders on remand, will promptly fashion a very well-reasoned progressive precedent vindicating respondents’ rights.
Then again, maybe they will just take whatever position that their “boss” Garland wants to litigate in behalf of his “partners” at DHS Enforcement.
What do you think Garland’s personally owned and operated courts will do?
Better Judges for a Better America —starting with the BIA! And, while you’re at it, how about throwing in an Attorney General committed to vindicating the legal and human rights of all persons!
So, NDPA, take up, the cudgel of justice and flood Garland’s courts and the Article IIIs with as many individual “exhaustion of remedies” cases as it takes to obtain justice or grind Garland’s corrupt system to a halt!
Garland would “rather fight than get it right.” So, take advantage of his limited litigation skills, tunnel vision, and the mediocre talent he employs to do his bidding. Take the fight to him, as he wishes!
Continually pummeling him in court is apparently the only way to get Garland to pay attention to progressives!
Additionally, you should, of course, keep applying for Immigration Judgeships, BIA Judgeships, Asylum Officer positions, and other key jobs where you can make a difference and save some lives.
Garland’s tone-deaf system must be attacked from all angles until it collapses under its own weight. An Attorney General who obviously would like to put migrants, their humanity, their rights, and YOU, their advocates, “out of sight, out of mind” so he can think great thoughts about the “really important things in life,” is eventually going to find that those he ignores and condemns without fair trial will be the ONLY thing on his plate and occupying his time!
When leadership lacks the vision, courage, and skills necessary to promote change, it falls to those at all levels of society and our justice system to assert the pressure and impetus for that essential change to take place! Keep pushing and pressing until “the powers that be” can’t ignore and marginalize you any more!
Vanita Gupta, Lucas Guttentag, and Kristin Clarke, what on earth do you do with yourselves all day long, now that you have removed yourselves from the battle for civil rights, equal justice,and racial justice in America? I guess there are lots of papers to push and meaningless meetings to attend in Garland’s broken DOJ bureaucracy.
I’d say things haven’t changed much. But, I actually think they have gotten measurably worse since “my days” at the DOJ. And, that’s saying a lot!
