Category: AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS

EOIR is looking for “many judges in many locations:”

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/many-immigration-judge-positions-open

https://www.justice.gov/legal-careers/job/immigration-judge-26

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Some folks who should be applying for these jobs tell me they “couldn’t work with such an unfair law.” I say “poppycock.” To a large extent, the law and the unfair results are only as bad as EOIR judges choose make them.

But, it doesn’t have to be that way! For example, you can choose to:

• Apply Cardoza-Fonseca, Mogharrabi, Kasinga, A-R-C-G-, and other precedents favorable to applicants fairly and robustly;
• Honestly apply the presumption of future persecution set forth in 8 CFR 208.13 and actually put the burden on DHS to rebut it with evidence, not mere conjecture;
• Carefully consider the possibility of a discretionary grant of asylum under the regulations (“so-called Chen grant”), even where the government rebuts the presumption of a well-founded fear; 
• Make realistic, practical, proper credibility determinations based on “the totality of the circumstances and all relevant factors;”
• Require only “reasonably available” corroborating evidence;
• Actually follow the legal principle that credible testimony, in an of itself, can be enough to grant relief; 
• Apply the “reasonableness of internal relocation” regulation set forth at 8 CFR 208.13(b)(3) honestly;
• Fairly apply the properly generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza and described by the BIA in Mogharrabi to cases where there is no past persecution;
• Incorporate the latest scholarship on “country conditions,” rather than “cherry picking” DOS Country Reports looking for ways to deny;
• Use the latest body of scholarship on “best interests of the child” in deciding cancellation of removal for non-LPRs;
• Schedule cases in a reasonable manner, in consultation with both counsel, to eliminate endemic “aimless docket reshuffling;”
• Take measures to promote and facilitate representation of individuals, rather than throwing up roadblocks; 
• Make ICE counsel do their jobs, rather than doing it for them, particularly in cases where ICE unilaterally declines to appear at the merits hearing; 
• Use all of your practical skills and knowledge of the law and practice to solve problems and promote efficiency;
• Consider all interpretations available to you, not just “defaulting” to the one offered by ICE;
• Make careful, analytical, findings of fact, rather than just glossing over facts favorable to the individuals and over-emphasizing or fabricating the facts most favorable to DHS;
• Make your “courtroom a classroom” where exceptional scholarship, due process, fundamental fairness, teamwork, practical solutions to human problems, and best practices are promoted and institutionalized.

You might well find, like I did, that being guided by Cardoza and Mogharrabi, sticking to your guns, providing full due process, and faithfully following the law actually leads to grants of relief in the majority of individual hearings. Notably, ICE seldom appealed my grants, and I was rarely reversed by the BIA, no matter who appealed. 

I actually did better with my former BIA colleagues as an IJ than I had during my eight years of service on the Board. Indeed, as I sometimes quipped, as an IJ, I finally got that which my colleagues often denied me during my tenure as BIA Chair and an Appellate Judge/BIA Member: deference! 

Worried about “life after EOIR!” Yes, there is such a thing! 

And, a quick survey of our Round Table of Former Immigration Judges and BIA Members 🛡⚔️ would show everything from partners and of counsel in law firms, professors and educators, major NGO supervisors and attorneys, community activists, consultants and coaches, to those, like me, who claim to be “fully retired and just enjoying life.” The Round Table actually has great credibility with the Federal Courts and the media because, unlike sitting judges and their “handlers,” we can actually speak truth to power outside the courtroom!

Whether you serve for a year or the rest of your career, what you learn as an EOIR judge if you pay attention, will give you a “leg up” and otherwise unobtainable practical knowledge of how America’s most important, yet least understood, court system actually works (or not)!

Every week, almost every day in fact, we see in Federal Court reversals and remands to EOIR and reports from practitioners about unpublished successes the fundamental difference that great litigation and equally “great judging” can make in reaching correct results! Making it happen every day, in every court, at the “retail level,” rather than counting on the uncertainties and limitations of Circuit review, will save lives and change the delivery of justice throughout America!

NDPAers, the “EOIR train” is leaving the station. 🚅 As a nation, we can’t afford the “best and the brightest” of today’s legal profession not to be on board! So, get those “many applications” in for those “many jobs” and let’s see if we can fix this “life or death system” from both the inside and the outside! We won’t know if we don’t try!

🇺🇸 Due Process Forever!

PWS

09-27-23