“APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’” – Page 19

☠️🤡🥵KAKISTOCRACY KORNER W/ EYORE: Tal Kopan @ SF Chron & Tanvi Misra @ Roll Call Report on Our (Anti) Hero’s Latest Adventures in Fraud, Waste & Abuse @ America’s Most Dysfunctional (Non) Courts! Can Eyore Trample Due Process, Squander Money, & Escape Accountability Forever? — What Happened to Congress & The Article IIIs? — Yeah, Eyore is Justifiably Sad, But Not Very “Lovable” Any More! — Tune In Next Week To See More of Your Taxpayer Money Poured Down the Drain by “Malicious Incompetents” Scheming to Inflict Injustice on The Most Vulnerable Humans!

Tal Kopan reports for the SF Chron:

Trump officials cut immigration court interpreters after miscalculating costs, report finds

WASHINGTON — The Trump administration grossly miscalculated budget projections before it cited funding problems to replace many immigration court interpreters in San Francisco and elsewhere with recorded videos, according to a new watchdog report.

The Justice Department began requiring immigration judges to use videos last year to explain the court system at immigrants’ initial appearances instead of in-person interpreters, a move first reported by The Chronicle. The department said the move was necessary to save money.

But an analysis by the department’s inspector general released Tuesday found that Justice Department officials were working off faulty numbers, part of an inaccurate portrayal of the agency’s larger budget situation.

The department “erroneously estimated its yearly interpreter costs by extrapolating a single, unusually high monthly interpreter expense, which was not supported by invoices or other contemporaneous evidence,” the watchdog wrote. “This erroneous estimate adversely affected (the agency’s) leadership’s communication of accurate budget needs to department and congressional decision makers.”

Full story: https://www.sfchronicle.com/politics/article/Trump-officials-cut-immigration-court-15327674.php

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

Meanwhile, over at Roll Call, Tanvi Misra reports:

DOJ ‘reassigned’ career members of Board of Immigration Appeals

The nine BIA members, all appointed before Trump took office, had recently rejected buyout offers from DOJ

By Tanvi Misra

Posted June 9, 2020 at 4:55pm

Career members at the Board of Immigration Appeals appointed prior to the Trump administration have been “reassigned” to new roles after they rejected recent buyout offers by the Justice Department.

The step appears to be the latest administrative move that critics say dilutes the independence of an important appeals body by filling it with new hires more willing to carry out the Trump administration’s restrictive immigration policies.

The change was announced in an internal email viewed by CQ Roll Call.

“This is to inform you that effective June 8, 2020, you will be reassigned from your current position as Board Member (Senior Level) to the Appellate Immigration Judge position,” said an email that went out last week to nine career members.

The Board of Immigration Appeals, or BIA, is a 23-member body under the Executive Office of Immigration Review, the Justice Department agency overseeing the immigration court system. Three-member BIA panels review immigration court decisions and issue precedent-setting rulings that shape national immigration law.

Volume 0%

[DOJ memo offered to buy out immigration board members]

The difference between “board member” and “appellate immigration judge” roles goes beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests, critics say. Sources familiar with the agency’s personnel matters, who declined to be identified for fear of retaliation, confirmed that all nine career members selected prior to the Trump administration received the email.

CQ Roll Call first reached out to EOIR for confirmation of the reassignments. Agency spokeswoman Kathryn Mattingly said via email that “board member roles and responsibilities are established by regulation and have not changed.”

Asked for additional comment this week once CQ Roll Call viewed the email, Mattingly said: “Adjudicator authorities are established by law and have not changed.”

The reassignment comes after DOJ offered, in an April 17 memo, “voluntary separation incentive payments” to the nine career board members, “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets.”

That memo, authored by EOIR Director James McHenry, noted the window for requesting these incentives closed on May 15. None of the nine career members accepted the offer, according to the sources at EOIR.

Under the Trump administration, the BIA has expanded from 17 members to 23. In addition, a flurry of career members have departed the agency, prompting EOIR to launch successive hiring sprees to fill new openings and vacant positions.

The nine most recent hires to the board include several immigration judges who denied over 90 percent of the asylum requests before them. Some also have a history of formal complaints of bias. The new hires have come on not as “board members” but as “appellate immigration judges.”

Ashley Tabaddor, who heads the immigration judges’ union, the National Association of Immigration Judges, said the “appellate immigration judge position” appeared to be a conflation of the BIA and the immigration judge roles. Adding more appellate immigration judges — who might review trial- and appellate-level cases at the same time — dilutes labor protections and undermines the independence of the immigration court system as a whole, she said.

“Over and over again, they’re just trying to conflate everything into one: ‘They’re all the same and no one should get protection from the union,'” Tabaddor said in an interview. “It’s so transparent that everything that they’re doing is to dismantle any semblance of a traditional court model.”

EOIR has repeatedly denied that accusation.

“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” the Justice Department said in a May 27 statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”

Government officials also have said the agency has been trying to streamline a lengthy, inefficient hiring process. Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said in its May statement.

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

A link to a complete copy of the IG Report is embedded in Tal’s report above.

Eyore’s Continuing Clown Show 🤡 rolls on, grinding up ☠️ and spitting out 🤮ruined human lives and mocking due process every day! When, oh when, will Congress and/or the Article IIIs do their jobs and put this grotesque spectacle of injustice out of its misery and end the unnecessary and clearly unconstitutional human pain and suffering that it inflicts? Is there no human decency and integrity left anywhere in our failing institutions beyond the regime’s direct control?

After dealing with the Trump Kakistocracy, Eyore probably never figured he’d be followed and exposed by tenacious folks like Tal & Tanvi who actually know more about what’s really happening at America’s Star Chambers than he does! Why don’t our legislators and judges have the same awareness, courage, and integrity as journalists like Tal and Tanvi? Why have those whose primary job it is to protect the Constitution and the general welfare by holding an overtly corrupt and maliciously incompetent Executive accountable gone “belly up?”

As usual, Judge Tabaddor is “right on.” Any resemblance between EOIR and a “court system” is purely coincidental. But, this mess is all too real for its victims — asylum seekers and other migrants asking for justice. The real question: How do the legislators and life-tenured Article III Judges who ignore and enable these deadly abuses get away with it? How do they sleep at night knowing that Eyore will trample more rights and destroy more lives of vulnerable fellow humans tomorrow, on “their watch!”

Due Process Forever! Institutional Complicity Never!

PWS

06-10-20

🏴‍☠️BIA DENIES DUE PROCESS AGAIN! — 9th Cir. Exposes Gross Abuses by EOIR in Effort to Deprive Armenian Refugees of Legal Asylum Status! — Grigoryan v. Barr

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-due-process-grigoryan-v-barr

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 on Due Process: Grigoryan v. Barr

Grigoryan v. Barr

“Our government granted asylum to Karen Grigoryan (“Petitioner”), his wife, and two of their children (collectively, the “Grigoryans”) in 2001. Beginning in 2005, the Grigoryans were subjected to a protracted immigration ordeal triggered by the government’s allegations of fraud in Petitioner’s asylum application. The Grigoryans’ bureaucratic nightmare culminated when, after they had resided in the United States for nearly fourteen years, an immigration judge (“IJ”) terminated their asylum status, denied their renewed requests for deportation relief, and ordered them removed to Armenia. The IJ terminated the Grigoryans’ asylum status by relying almost exclusively on a single-page “report” introduced by the Department of Homeland Security (“DHS”) that purportedly revealed that Petitioner’s original asylum application contained fraudulent documents. Although the Grigoryans were not allowed to examine any of the documents or the individuals referred to in the report, they ultimately proved that half of the fraud allegations in the report were unfounded. The IJ also relied on adverse credibility findings entered against Petitioner at an earlier hearing that never should have taken place. The question before us is whether, in light of this series of missteps, the agency erred in terminating the Grigoryans’ asylum status. We have jurisdiction over the Grigoryans’ petition for review pursuant to 8 U.S.C. § 1252. We hold that the government violated the Grigoryans’ due process rights by failing to provide them a full and fair opportunity to rebut the government’s fraud allegations at the termination hearing. We therefore grant the petition, vacate the decision by the Board of Immigration Appeals (“BIA”) and the IJ’s order of deportation, and remand to the BIA for further proceedings consistent with this opinion.”

[Hats off to Catalina Gracia and Areg Kazaryan!]

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

Circuit Courts continue to “out” constant failures of elementary due process by a BIA that has abandoned that concept to serve as an “rubber stamp” for their “partners” at DHS Enforcement. Wrongfully sending asylum seekers back to persecution based on bogus grounds and defective procedures can be a death sentence.

But, these systemic violations of due process and the essential “fraud” being perpetrated on the Article III Courts by imposters posing as “subject matter experts” and an enforcement body masquerading as a “court” remains unaddressed. It’s no secret that the corrupt Billy Barr is unqualified to serve as the chief legal official of the U.S. Nor is it “rocket science” to recognize that allowing him to run a “court system” violates Constitutional due process. So, what’s the justification for life-tenured Article III judges who fail to halt these grotesque, life-threatening abuses and require the long, long overdue constitutionally-required reforms to create an independent judiciary insulated from political control?

Due Process Forever! Complicit Courts Never!

PWS

06-08-20

“PEREIRA II” — SUPREMES TAKE ANOTHER “STOP TIME” IMMIGRATION CASE — Niz-Chavez v. Barr

https://www.scotusblog.com/2020/06/court-grants-immigration-case/

Amy Howe reports for SCOTUS Blog:

Court grants immigration case

This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.

With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.

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

Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.

At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.

In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.

The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.

And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes of both “judicial task avoidance” and the White Nationalist agenda of the Administration.

Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.

While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.

Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals. Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following a racially-biased agenda of dehumanization, degradation, and deportation.

Due Process Forever!

PWS

06-08-20

🤡CLOWN SHORTAGE IN AMERICA? — EOIR CAN’T FIND ONE TO FILL DEPUTY DIRECTOR JOB — Re-Advertises, Again! — ☠️☠️☠️WARNING: Successful Candidate Must Have Experience in “Cooking Books” & Be Willing “Fall Guy” For America’s Most Dysfunctional Parody of a “Court System!”☠️☠️☠️

🤡🤡🤡🤡🤡

Deputy Director

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

Overview
Locations
Duties
Requirements
Required Documents
Benefits
How to apply

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Overview

Open & closing dates
Opening and closing dates 06/02/2020 to 07/02/2020

Service
Senior Executive

Pay scale & grade
ES 00

Salary
$131,239 to $197,300 per year

Appointment type
Permanent

Work schedule
Full-Time

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Location

1 vacancy in the following location:

Falls Church, VAFalls Church, VA

Relocation expenses reimbursed

No

Telework eligible

No

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This job is open to

Senior executives
Those who meet the five Executive Core Qualifications (ECQs).

Clarification from the agency

U.S. Citizens

Apply

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Announcement number

SES-10830644-20-AS

Control number

569755300

Duties
Help Help
Duties
Summary
If you are interested in a rewarding and challenging career, this is the position for you!

Learn more about this agency
Responsibilities
The Executive Office for Immigration Review (EOIR) seeks highly-qualified individuals to join our team of expert professionals in becoming a part of our challenging and rewarding Agency. The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three adjudicatory components: The Office of the Chief Immigration Judge, which is responsible for managing the Immigration Courts where Immigration Judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of these Immigration Judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.

This position is located in the Office of the Director, Executive Office for Immigration Review, U. S. Department of Justice. Incumbent serves as the Deputy Director. This position enjoys the full delegated authority of the Director to manage all aspects of EOIR operations. Thus, the incumbent is responsible for the supervision of the Chairman of BIA, the Chief of OCIJ, the Chief of OCAHO, and all agency personnel in the execution of their duties.

Typical work assignments will include:

Responsible for the formulation and administration of policies affecting the mission of EOIR.

Manages the development, evaluation, and implementation of policies for agency-wide programs.

Explores and plans long-range development goals, as well as short-term strategies.

Develops and implements funding and resource strategies to further the agency’s goals and oversees strategic planning for all agency components.

Exercises the authority delegated by the Attorney General and represents the position and policies of EOIR the the Attorney General, the Deputy Attorney General, Members of Congress and other governmental bodies, the press, the bar, and private groups interested in immigration matter.

Travel Required
Occasional travel – You may be expected to travel for this position.Supervisory status
Yes

Promotion Potential
00

Job family (Series)
0905 Attorney

Requirements
Help Help
Requirements
Conditions of Employment

You must be a U.S. Citizen or National.

You must complete a background investigation, credit check, and drug test.

Selective Service Registration is required, as applicable.

May be required to file a Financial Disclosure.

Salary payments must be by direct deposit to a financial institution.

Probationary period: For those entering the SES career service for the first time are subject to a one-year probationary period.

Managerial qualifications of those not a current or former SES employee must be approved by OPM before appointment.

Those who completed the Candidate Development Program (CDP) and have ECQ’s certified by OPM must provide a copy with the application.

Applicants must meet all qualifications and eligibility requirements by the closing date of the announcement.

Qualifications
In order to qualify for the Deputy Director position, you must meet the following minimum qualifications:

Education: Applicants must possess a LL.B. or a J.D. degree.

-AND-

Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of a U.S. state, territory, Puerto Rico or the District of Columbia (include the MM/YY date of your admission to the bar).

-AND-

Experience: Applicants must be U.S. citizens and must have practiced as an attorney, post-bar admission, for a minimum of seven (7) years at the time the application is submitted with at least 1 year of experience at a level equivalent to the GS-15 in the Federal service.(Your resume must CLEARLY demonstrate this experience)

Applicants must meet all qualifications and eligibility requirements by the closing date of the announcement.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your questionnaire answers, we will not allow credit for your response(s).

For more information on the qualifications for this position, click here.

Executive Core Qualifications (ECQs):

ECQ 1- LEADING CHANGE. This core qualification involves the ability to bring about strategic change, both within and outside the organization, to meet organizational goals. Inherent to this ECQ is the ability to establish an organizational vision and to implement it in a continuously changing environment.

Leadership Competencies: Creativity & Innovation, External Awareness, Flexibility, Resilience, Strategic Thinking, Vision

ECQ 2- LEADING PEOPLE. This core qualification involves the ability to lead people toward meeting the organization’s vision, mission, and goals. Inherent to this ECQ is the ability to provide an inclusive workplace that fosters the development of others, facilitates cooperation and teamwork, and supports constructive resolution of conflicts.

Leadership Competencies: Conflict Management, Leveraging Diversity, Developing Others, Team Building

ECQ 3 – RESULTS DRIVEN. This core qualification involves the ability to meet organizational goals and customer expectations. Inherent to this ECQ is the ability to make decisions that produce high-quality results by applying technical knowledge, analyzing problems, and calculating risks.

Leadership Competencies: Accountability, Customer Service, Decisiveness, Entrepreneurship, Problem Solving, Technical Credibility.

ECQ 4- BUSINESS ACUMEN. This core qualification involves the ability to manage human, financial, and information resources strategically.

Leadership Competencies: Financial Management, Human Capital Management, Technology Management

ECQ 5- BUILDING COALITIONS. This core qualification involves the ability to build coalitions internally and with other Federal agencies, State and local governments, nonprofit and private sector organizations, foreign governments, or international organizations to achieve common goals.

Leadership Competencies: Partnering, Political Savvy,Influencing/Negotiating

Mandatory Technical Qualification Requirements:

In addition to the ECQs above, qualified candidates must possess the following technical qualifications. Possession of these technical qualifications must be clearly documented in your application package and should be addressed separately.

1. Ability to interpret cases, statues and administrative regulations and apply them to an organizations mission.

2. Comprehensive knowledge of immigration law and procedure, with particular expertise in administrative and Judicial case law and regulations.

3. Ability to draft regulations to implement Department and agency policy and statutory requirements.

4. Ability to represent an organization in administration hearings and proceedings.

5. Demonstrated decision-making, problem- solving, and legal writing skills.

6. Ability to create a customer-service driven organization.EducationAdditional information
Conditions of Employment: Only U.S. Citizens or Nationals are eligible for employment with the Executive Office for Immigration Review. Dual citizens of the U.S. and another country will be considered on a case-by-case basis. All DOJ applicants, both U.S. citizens and non-citizens, whose job location is with the U.S., must meet the residency requirement. For a total of three (not necessarily consecutive years) of the five years immediately prior to applying for a position, the applicant must have: 1) resided in the U.S., 2) worked for the U.S. overseas in a Federal or military capacity; or 3) been a dependent of a Federal or military employee serving oversees.

NOTE: Veteran’s preference does not apply to this position. 5 USC 2108(3), which defines “preference eligible”, indicates this does not include applicants for, or members of, the Senior Executive Service.

If you are unable to apply online or need to fax a document you do not have in electronic form, view the following link for information regarding an Alternate Application.Read moreHow You Will Be Evaluated
You will be evaluated for this job based on how well you meet the qualifications above.
Once the application process is complete, a review of your resume and supporting documentation will be made and compared against your responses to the assessment questionnaire to determine if you are qualified for this job.

In order to be rated as meeting the minimum qualifications, we must be able to determine from your application package that you have the education and/or specialized or general experience that is required.

Applicants who have qualifying experience performed on less than a full-time basis must specify the percentage and length of time spent in performance of such duties.Read more
Background checks and security clearance
Security clearance
Top Secret Drug test required
Yes

Required Documents
Help Help
Required Documents
To apply for this position, you must provide a complete Application Package by the closing date of this announcement, which includes:

1. Your Resume showing relevant experience; cover letter optional

2. A complete Assessment Questionnaire

3. For those attempting to enter the SES career service for the first time, you must submit mandatory statements to address the Executive Core Qualifications (ECQ).

4. All applicants are required to submit the Mandatory Technical Qualifications (MTQ).

5. Current or former SES must submit SF-50 and/or SES certificate to show current or prior service.

Note: Please ensure that your resume contains your full name, address, phone number, employment information such as: Employer name and location; From and to dates (or from date to present for current position), which include the month and year MM/YY for each description of experience, with grade level held, if applicable, education, training etc. Qualifying experience performed on less than a full-time basis must specify the percentage and length of time spent in performance of such duties.
If you are relying on your education to meet qualification requirements:
Education must be accredited by an accrediting institution recognized by the U.S. Department of Education in order for it to be credited towards qualifications. Therefore, provide only the attendance and/or degrees from schools accredited by accrediting institutions recognized by the U.S. Department of Education.
Failure to provide all of the required information as stated in this vacancy announcement may result in an ineligible rating or may affect the overall rating.

Benefits
Help Help
Benefits
A career with the U.S. Government provides employees with a comprehensive benefits package. As a federal employee, you and your family will have access to a range of benefits that are designed to make your federal career very rewarding. Learn more about federal benefits.Review our benefits
Eligibility for benefits depends on the type of position you hold and whether your position is full-time, part-time, or intermittent. Contact the hiring agency for more information on the specific benefits offered.

How to Apply
Help Help
How to Apply
You must submit a complete application package by 11:59 PM (EST) on the closing date of the announcement.

* To begin, click Apply Online to create a USAJOBS account or log in to your existing account. Follow the prompts to select your USAJOBS resume and/or other supporting documents and complete the occupational questionnaire, which can be previewed here: https://apply.usastaffing.gov/ViewQuestionnaire/10830644.

* Click the Submit My Answers button to submit your application package.

* It is your responsibility to ensure your responses and appropriate documentation is submitted prior to the closing date.

* To verify your application is complete, log into your USAJOBS account, select the Application Status link and then select the more information link for this position. The Details page will display the status of your application, the documentation received and processed, and any correspondence the agency has sent related to this application. Your uploaded documents may take several hours to clear the virus scan process.

* To return to an incomplete application, log into your USAJOBS account and click Update Application in the vacancy announcement. You must re-select your resume and/or other documents from your USAJOBS account or your application will be incomplete.Read more
Agency contact information
Allison Smith Allison Smith
Phone
(816) 426-5706
Email
allison.smith@opm.govAddress

Office of the Director

5107 Leesburg Pike, Ste. 2300

Falls Church, VA 22041

USLearn more about this agencyNext steps
You will be notified of your application status during the hiring process, as applicable. You may check your application status by accessing the USAJOBS website and clicking “Application Status”. The process may take up to 6 weeks.

The four points of notification are:

Application Received or Application Incomplete

Minimum Qualification Requirement Met/Not Met

Eligible (Application Referred) or Eligible (Application Not referred)

Selected or Not Selected

If your name is referred to the hiring official, you may be contacted directly by that office for a possible interview.Read more

Fair & Transparent
Fair & Transparent
The Federal hiring process is setup to be fair and transparent. Please read the following guidance.
Equal Employment Opportunity Policy
The United States Government does not discriminate in employment on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, political affiliation, sexual orientation, marital status, disability, genetic information, age, membership in an employee organization, retaliation, parental status, military service, or other non-merit factor.

Equal Employment Opportunity (EEO) for federal employees & job applicants

Read more
Reasonable Accommodation Policy
Federal agencies must provide reasonable accommodation to applicants with disabilities where appropriate. Applicants requiring reasonable accommodation for any part of the application process should follow the instructions in the job opportunity announcement. For any part of the remaining hiring process, applicants should contact the hiring agency directly. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
A reasonable accommodation is any change to a job, the work environment, or the way things are usually done that enables an individual with a disability to apply for a job, perform job duties or receive equal access to job benefits.
Under the Rehabilitation Act of 1973, federal agencies must provide reasonable accommodations when:

An applicant with a disability needs an accommodation to have an equal opportunity to apply for a job.

An employee with a disability needs an accommodation to perform the essential job duties or to gain access to the workplace.

An employee with a disability needs an accommodation to receive equal access to benefits, such as details, training, and office-sponsored events.

You can request a reasonable accommodation at any time during the application or hiring process or while on the job. Requests are considered on a case-by-case basis.
Learn more about disability employment and reasonable accommodations or how to contact an agency.Read more

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According to insiders, this is the fourth or fifth attempt by the current regime to fill what normally would be a “highly desirable” career Senior Executive position. But, in the kakistocracy, it’s likely to be a “career ender.”

My advice: make sure you have paid up liability insurance and “alternate career plans” if you apply. A good “White Collar Crime” lawyer on retainer wouldn’t be a bad idea either.

PWS

06-05-20

KAKISTOCRACY KORNER: FRAUD, WASTE, & ABUSE UNDER THE EOIR BIG TOP 🤡🎪🤹‍♂️ — TRAC DECLARES EOIR’S BOGUS STATISTICS TO BE NATIONAL DISASTER! ☠️— “The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”🤮 — WHERE’S THE OVERSIGHT? WHERE’S THE ACCOUNTABILITY?

https://trac.syr.edu/immigration/reports/611/

EOIR’s Data Release on Asylum So Deficient Public Should Not Rely on Accuracy of Court Records

TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem[1]. We also wish to alert the public that any statistics EOIR has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified[2].

The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities. Left unaddressed, the number of deleted records will compound each month and could trigger an expensive data crisis at the agency. And here the missing records are the actual applications for asylum, and how the court is handling them. This is a subject on which there is widespread public interest and concern.

EOIR Data Irregularities Approaching Point of No Return

Despite TRAC’s appeals to the EOIR, Immigration Court records continue to disappear each month. TRAC initially reported 1,507 missing applications for relief in our October 2019 report, which grew to 3,799 missing applications the following month. We wrote EOIR Director James McHenry providing a copy of the 1,507 missing applications asking for answers on why these records were missing from their files. We wrote again when the number of missing applications more than doubled the following month. These letters were met with silence. Not only have these cases disappeared entirely, they have not been restored in any subsequent data releases and the number of missing relief applications continue to grow. (See the final section for a short explanation of TRAC’s methodology.)

Alarmingly, the number of relief applications that were present in the March 2020 data release but were missing in the April release jumped to 68,282. This is just the number of records that disappeared over a single month. It does not include the ever growing number of applications that had previously disappeared month-by-month. As was true in past months, roughly four out of five of the records in the March 2020 release that disappeared from April’s release concerned applications on which the court had rendered its decision, including many cases in which the immigration judge had granted asylum as well as other forms of relief.

To put that into perspective, the number of missing cases just last month is more than the 63,734 asylum applications received by the Immigration Courts during all of FY 2015. If these applications are missing because they have been deleted from the Court’s own master files, the magnitude of the task of restoring just this single month’s destruction—assuming this is even possible—is enormous. To go back and restore the cumulative number of relief applications that went missing during previous months will obviously be even greater.

In fact, so many asylum decisions were dropped from EOIR’s April release that the cumulative number of asylum decisions went down, not up, despite asylum decisions continuing to be made. The volume of disappearing records has reached a scale that little faith can be placed in the factual accuracy of reports published by the EOIR based on its data.

The EOIR’s escalating data problems should raise dire concerns for Congress, policymakers and the public who routinely put their faith in federal agencies to provide complete and accurate information about their work. Indeed, the management of the court system itself, including the quota system recently imposed on immigration judges, presupposes the accuracy of the court’s own records. It is deeply worrisome that the EOIR and the Department of Justice appear unconcerned with ensuring that their own records are accurate and uncommitted to providing the public with accurate and reliable data about the Court’s operations.

TRAC Urges EOIR to Take Immediate Action

To date, the EOIR has not responded to TRAC’s requests for an explanation of these disappearances, nor has the EOIR responded to TRAC’s FOIA requests for records that would shed light on this matter.

Therefore, TRAC has written a third letter to Director McHenry reporting our findings of 68,282 new disappearances and we are again seeking a commitment from him to take the steps needed to address the problem. More urgently, we are asking that the EOIR immediately preserve—rather than destroy—all back-up tapes or other media in the hopes that records apparently improperly deleted from the Court’s master files might be restored. We assured Director McHenry that we would be more than happy to work cooperatively with the agency to help them better ensure that going forward the public is provided with more accurate and reliable data about the Immigration Court’s operations.

How EOIR’s Data Mismanagement Impacts TRAC’s Immigration Court Tools

TRAC’s mission is to provide the public with accurate, reliable, unbiased, and timely data on the operations of the federal government, and to ensure that the public is informed about changes that impact our data.

The EOIR’s disappearing records fall under the data related to applications for relief. The record on the existence of the court case itself is present, but for a growing number of these cases there now is no record that the immigrant ever applied for relief, or the court’s decision on that application. One of the key moments in the life of the case—including applications for asylum—is missing entirely. As a direct consequence TRAC does not have the information needed to provide reliable or meaningful updates on the court’s handling of applications for asylum and must therefore discontinue updating its asylum decision app.

While each of the other files in EOIR’s monthly data releases also have the same problem of records disappearing, the magnitude of these disappearances has not reached the levels seen with applications for relief. While still worrisome, these levels have not yet climbed to where we believe we can no longer use the information we receive. Thus, we are continuing to update the rest of our other Immigration Court apps. We continue to closely monitor the situation, while we urge EOIR to explain why records keep disappearing. We further continue to ask the agency to take the steps needed to rectify the situation.

TRAC will continue to retain all previous and future EOIR data shipments for research purposes.

How did TRAC Identify the EOIR’s Data Irregularities?

The Executive Office for Immigration Review (EOIR) oversees the nationwide Immigration Court system, including more than 60 physical Immigration Court locations (as well as many more remote hearing locations including teleconference sites and ad hoc “tent” courts), hundreds of Immigration Judges, and millions of immigration cases that pass through the court system. The EOIR records information on each case and tracks various proceedings, filings, hearings and other aspects of each case in a large database. This database is central to the Court’s ability to manage its workload, prepare and publish reports for the public, and respond to queries from Congress about its operations. It is also used in implementing new practices, including the recent decision to impose new evaluation criteria for Immigration Judges.

As a result of TRAC’s ongoing FOIA requests, the EOIR releases a large batch of anonymized Immigration Court data each month that provides a snapshot of a great deal of the information recorded in this database on the handling of each case. In short, TRAC does not create data on the EOIR; rather, TRAC’s uses the EOIR’s own data. This data is the foundation for TRAC’s Immigration Court data tools which help ensure transparency and accountability for the American public.

TRAC used this data to precisely identify deleted records. While the information TRAC receives does not identify individuals, EOIR’s computer system assigns a unique computer sequence number to each case that identifies it. Because TRAC receives comprehensive data shipments from the EOIR each month that include these unique computer-assigned tracking numbers, TRAC can match each record received in the previous month with the same corresponding record in the following month’s release. Each release is also cumulative. That means it should include every record from the previous month plus every new record that has been added to the database over the course of the current month. As a rule, records should therefore never disappear[3].

When a record that was present is not included in the next month’s release, TRAC refers to these as missing or disappearing records. Because humans maintain most databases including EOIR’s, mistakes will occur. Therefore no database is ever perfect. So a few disappearing records might be expected. However, as is the situation here, concern is warranted whenever significant numbers of records disappear. Indeed, alarm bells should ring as the number of disappearing records grow. This situation means the data can no longer be trusted to reliably track the court’s proceedings.

Footnotes

[1] EOIR monthly releases consist of a series of tables covering different aspects of its workload. While each of these tables continue to have disappearing records each month, the magnitude of these missing records varies by table. For example, in the table that tracks each case before the court there were 228 cases present in March that disappeared from the April release, compared with 41,233 new cases that were added. While the problem of disappearing case records remains very troubling for the case table along with each of the other EOIR tables, TRAC believes that their magnitudes do not rise to the same level as the problem for applications for relief where the data now are so unreliable and misleading that they do not warrant the public placing any trust in them. At this time, we therefore are continuing to update our other Immigration Court apps while alerting the public to this continuing serious problem that affects the reliability of EOIR data releases more generally.

[2] For an example of a recent EOIR publication that may contain significant data errors, see the graph and table reporting total asylum applications through March 2020, which was generated using data from April 2020: https://www.justice.gov/eoir/page/file/1106366/download.

[3] Even when a data entry error is made, the database has special codes to indicate that a record should be disregarded because it was a data entry error so that rarely is it necessary to actually delete records.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

. . . .

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Read the rest of TRAC’s report at the link.

EOIR isn’t willing and able to do its only function: provide fair, impartial, and timely adjudications to asylum seekers and other migrants while following best judicial practices.

But they do have time to waste taxpayers’ money on nonsense like the chart at this link: https://www.justice.gov/eoir/file/1217001/download. This was obviously designed to further the Trump regime’s false narrative regarding the merits of asylum claims. While the chart is largely incomprehensible, misleading nonsense, what stands out is this:

At the end of an abusive process during which the law has been illegally skewed against asylum seekers and “judges,” most of whom are not experts in asylum law and who have never even represented an asylum seeker, are encouraged to deny meritorious claims for protection, against the odds, over 25% (12 of 47) of those who actually get through this biased dysfunctional mess still get asylum!

It’s reasonable to believe that under a fair system, with impartial decision makers who have expertise in asylum law, and without the interference of biased, overtly anti-asylum politicos like Sessions and Barr, asylum seekers would succeed the majority of the time, as they did before efforts by both the Obama and Trump Administrations to “ratchet down” asylum grants so that the EOIR system would serve DHS Enforcement as a “deterrent” to those seeking protection.

Obviously, the DOJ is afraid that under a fair, independent judicial system that actually employed judges who were experts in asylum law and who had real life experience representing asylum applicants, the majority of claims would be granted, thereby exposing the fraud, dishonesty, and misconduct involved in the present anti-asylum system.

It’s a national disgrace that is actually harming and sometimes killing those deserving of protection under our law.

Due Process Forever! Dishonest, Unethical, Incompetent, and Intentionally Biased “Courts” Never!

PWS

06-04-20

⚖️💰JUSTICE FOR SALE: DOJ ATTEMPTED TO “BUY OUT” “HOLDOVER” BIA MEMBERS TO CLEAR THE WAY FOR AGGRESSIVELY NATIVIST AGENDA — It Failed, But The Anti-Immigrant, Anti-Asylum, Anti-Due Process Tilt Still Took Place!

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

Tanvi Misra reports for Roll Call:

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

DOJ memo offered to buy out immigration board members

The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office

The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)

By Tanvi Misra

Posted May 27, 2020 at 5:04pm

The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.

An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.

EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.

According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.

CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”

“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.

The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.

In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.

The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.

“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”

Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.

While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.

“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”

The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.

“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.

“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.

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

The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.

This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”

Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time. So, I rejected it, and eventually got a much better “deal.”

The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.

Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.

Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.

Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.

Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.

It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.

The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).

Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.

As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.

Due Process Forever, Captive & Complicit Courts, Never!

PWS

05-28-20

UPDATE:

Benjamin Johnson
Executive Director
AILA

AILA Statement on BIA:

AILA: EOIR Director Attempts to Buy Out Remaining Board Members to Solidify Control of Immigration Courts

AILA Doc. No. 20052830 | Dated May 28, 2020

Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.

AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”

“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”

###

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

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

The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.

If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!

Due Process Forever!

PWS

05-28-20

FORBES PROFILES DUE PROCESS WARRIOR STEPHEN MANNING OF INNOVATION LAW LAB!

Stephen Manning ESQUIRE
Founder, Innovation Law Lab
Portland, OR

https://apple.news/ADjIgsd5vTR6lN15QEpey1w

Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.

How did you get involved in immigration law in the first place?

I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.

What is so dehumanizing about immigration?

In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.

The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.

What surprises people when they learn about the realities of the U.S. immigration system?

People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.

You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?

Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.

. . . .

Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.

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

You can read the rest of the profile at the link.

Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.

PWS

05-22-20

👂🏻👀🤫EOIR RUMOR MILL — DOJ Honcho & X-OILer David H. Wetmore Reportedly Will Be Tapped As New BIA Chair!

https://jnc.dc.gov/biography/david-h-wetmore

David H. Wetmore

David H. Wetmore, Esq. is a career appellate litigator in the United States Department of Justice, currently serving as Associate Deputy Attorney General. During his tenure at the Department of Justice, Mr. Wetmore has also served as Senior Counsel to the Deputy Attorney General and as a Trial Attorney in the Civil Division. He has been the principal author of hundreds of appellate briefs and argued over twenty-five cases in federal courts of appeals. Prior to joining the Department of Justice, Mr. Wetmore was an associate attorney in Sidley Austin LLP’s District of Columbia office, and at Jenner & Block LLP’s Chicago office, where his practice focused on civil, criminal, and constitutional litigation. Mr. Wetmore has experience in all aspects of litigation, from initial investigation and discovery through trial and appeal, in both state and federal courts, including in the District of Columbia. He has also served as an Adjunct Professor at The George Washington University Law School.

Mr. Wetmore earned his Bachelor of Arts, magna cum laude, from Miami University, where he was elected to Phi Beta Kappa, graduated from the University Honors Program, and received Departmental Honors in Political Science and Philosophy. He earned his Juris Doctor, with High Honors, from The George Washington University Law School, where he was an Articles Editor of The George Washington Law Review, elected to Order of the Coif, and a member of the Moot Court Board. Following law school, Mr. Wetmore served as a law clerk to the Honorable Gordon J. Quist, in the United States District Court for the Western District of Michigan, and later to the Honorable Daniel A. Manion, in the United States Court of Appeals for the Seventh Circuit.

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

Normally reliable, totally unofficial anonymous sources say Wetmore’s “the one.”

There is further rank, unverified speculation that the current Acting Chair, Judge Garry Malphrus, eventually will get the just-advertised “Vice Chair/Deputy Chief Appellate Judge” position as a reward for reliably furthering the BIA’s anti-immigrant jurisprudence during his tenure. Malphrus replaced former Chair David Neal who resigned suddenly last Fall.

Wetmore currently is an Associate Deputy Attorney General at the DOJ. That’s roughly the DOJ equivalent of the “Under Assistant West Coast Promo Man*.” The Associate Deputy Attorney General, of course, should never be confused with the Deputy Associate Attorney General, an entirely different position. Actually, it’s about as far up the DOJ hierarchy that a “career” attorney can get. The higher level positions, in this case the Deputy Attorney General, are Presidentially-appointed politicos.

With this development, the connection between the BIA and the Office of Immigration Litigation (“OIL”) should become “seamless.” The BIA staff can just “cut and paste” OIL briefs into their decisions and vice versa. This eliminates the need to sometimes request time-consuming Circuit Court remands to get the BIA to adopt OIL’s preferred litigating position. In turn, this should totally eliminate the possibility of an individual ever “winning” a BIA appeal and will eradicate any remaining traces of due process or fundamental fairness at the BIA.

These moves, combined with an outrageous proposed increase in the filing fee for a BIA appeal, will undoubtedly be a powerful tool for deterring, discouraging, and punishing individuals for exercising their legal rights. These are critical steps in insuring the smooth operation of the regime’s “Deportation Railroad.”

Any way you look at it, today’s BIA certainly presents an “interesting diversity profile,” particularly considering the community whose rights it once was supposed to protect, but now has unabashedly abandoned as it seeks to carry out the Trump/Miller/Barr White Nationalist mission of “Dred Scottifying the other.”

It also continues a two-decades long “DOJ tradition” of intentionally failing to attract better-qualified candidates from the private immigration sector, with actual experience representing and interacting with asylum seekers and other migrants, for BIA judgeships. The “outside, non-restrictionist world” has also been overwhelmingly excluded from appointments to Immigration Courts, with essentially de facto preference being given to government prosecutors.

Obviously, the reduction of Immigration Judges and Appellate Immigration Judges to something akin to “deportation clerks” straining to meet “production quotas” and pressured by regime politicos to aid DHS Enforcement by churning out deportation orders has been an important step in “dumbing down” EOIR. Today, EOIR is probably more subservient to DHS Enforcement, less impartial, and more of an administrative disaster than it was under the “Legacy INS.” Except, now there is more of everything — more overt political interference in the adjudication process, more bad law intentionally created, more and bigger backlogs, more intellectual dishonesty, more chaos, more disrespect for and demeaning of respondents and their attorneys, and more lives ruined.

Due Process Forever! Weaponized, Captive, “Courts” Never!

PWS

05-21-20

*Stones, The Rolling, “The Under Assistant West Coast Promo Man”

Well, I’m waiting at the bus stop in downtown L.A.
Well, I’m waiting at the bus stop in downtown L.A.
But I’d much rather be on a boardwalk on Broadway

Well, I’m sitting here thinkin’ just how sharp I am
Well, I’m sitting here thinkin’ just how sharp I am
I’m an under assistant west coast promo man

Well, I promo groups when they come into town
Well, I promo groups when they come into town
Well they laugh at my toupee, they’re sure to put me down

Well, I’m sitting here thinking just how sharp I am
Yeah, I’m sitting here thinking just how sharp I am
I’m a necessary talent behind every rock and roll band

Yeah, I’m sharp
I’m really, really sharp
I sure do earn my pay
Sitting on the beach every day, yeah
I’m real real sharp, yes I am
I got a Corvette and a seersucker suit
Yes, I have

Here comes the bus, uh oh
I though I had a dime
Where’s my dime
I know I have a dime somewhere
I’m pretty sure

Writer/s: Keith Richards, Michael Jagger

Publisher: Abkco Music, Inc.

Lyrics licensed and provided by LyricFind

Check it out from YouTube here (you can skip the commercials):

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“GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

Matter of HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

https://www.justice.gov/eoir/page/file/1274901/download

BIA HEADNOTE:

The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

PANEL: BEFORE: Board Panel: MANN, Board Member; MORRIS,* Temporary Board Member; Concurring Opinion: KELLY, Board Member.

* Immigration Judge Daniel Morris, Hartford CT Immigration Court, Temporary Board Member/Appellate Immigration Judge

OPINION BY: Judge Ana Mann

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

The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).

This follows Matter of J.J. Rodriguez where the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.

There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.

I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”

To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.

Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴‍☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.

Meanwhile, back at the ranch, the BIA is advertising for an additional Vice Chair/Deputy Chief Appellate Judge to help insure that the deportation assembly line in Falls Church moves smoothly and that due process and fundamental fairness never get in the way of enforcement. https://www.justice.gov/legal-careers/job/deputy-chief-appellate-immigration-judge-vice-chair

Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.

Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.

Due Process Forever! Complicity Never!

PWS

05-13-20

HON. JEFFREY S. CHASE: 1ST CIRCUIT CORRECTS BIA ON GENDER-BASED ASYLUM DENIALS: De Pena Paniagua v. Barr – The Recurring Failure Of Scholarship By The AG & The BIA Again “Outed” By Article IIIs: So Why Do Federal Courts Continue “Deferring” To Politicized, Non-Expert, Sloppy Adjudications By Enforcement Officials Working For The Executive Branch?

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Gender Per Se

In De Pena Paniagua v. Barr, a three-judge panel of the U.S. Court of Appeals for the First Circuit made several corrections to the Trump administration’s application of the law of asylum as it applies to victims of domestic violence. The court’s precedent decision provided validation to the longstanding views of asylum advocates that the administration has worked hard to ignore.

As background, after an 18-year legal battle, the BIA in a 2014 decision, Matter of A-R-C-G-, finally recognized that the particular social group of married Guatemalan women unable to leave their relationship warranted asylum where its members are targeted for persecution due to their group characteristics.

In 2018, then-Attorney General Jeff Sessions vacated A-R-C-G-, claiming that it lacked the rigorous legal analysis expected of such a decision. Sessions stated that while his new decision did not bar all such claimants from asylum, he believed few victims of domestic violence would manage to qualify. In particular, Sessions decided that “women unable to leave their domestic relationship” could not form the legitimate particular social group needed under the asylum laws, on the ground that such groups cannot be defined even in part by the persecution the group fears. In support of this view, Sessions concluded that the asylum-seeker’s inability to leave her relationship in the case in question was due to persecution, although he provided no insight as to what facts supported his belief.

Many similar cases were pending when Sessions issued his fateful decision. But instead of remanding all pending cases to allow the opportunity to respond to the sudden change in the law, the BIA instead began denying those cases on the grounds that Sessions had rejected the concept, without bothering to actually analyze the specific facts of each case to see if they still merited asylum under the law.

In De Pena Paniagua, the First Circuit called shenanigans. It began by noting that nothing in Sessions’ decision created a categorical rule precluding any and all applicants from succeeding on asylum claims as members of the group defined as women unable to leave their relationships. The BIA had thus erred in categorically denying such a claim.

The court next turned to Sessions’ error in concluding that the inability to leave a relationship necessarily results from persecution, calling Sessions’ statement to the contrary “arbitrary and unexamined fiat.” But the court continued that even if persecution was the cause, the threatened abuse that precludes someone from leaving a relationship “may not always be the same…as the physical abuse visited upon the woman within the relationship.” Finally, the court held that even if the harm was the same, there is no reason such abuse can’t do “double-duty, both helping define the group and providing the basis for a finding of persecution.”

It bears noting that in a 2007 precedent decision, Matter of A-M-E- & J-G-U-, the BIA had only held that a particular social group cannot be defined “exclusively by the fact that its members have been subjected to harm.” And the group in De Pena Paniagua (and in A-B- and A-R-C-G-, for that matter) was not exclusively defined by the inability to leave, but also by its members’ gender, nationality, and domestic relationship status. Of course, the inability to leave a relationship can be due to social, religious, economic, or other factors having nothing to do with persecution. But even if the inability to leave is interpreted as resulting from persecution, the fact that such harm would only partially define the group would not invalidate it under A-M-E- & J-G-U- (which borrowed the “exclusively defined” language from particular social group guidelines issued by UNHCR in 2002, which the Board had cited in an earlier decision).

In a 2014 case, Matter of M-E-V-G–, DHS had argued for a requirement that a particular social group “must exist independently of the fact of persecution,” a stricter requirement that would seemingly forbid a group from being even partially defined by persecution. Strangely, the BIA responded to DHS’s argument in a footnote, claiming that DHS’s proposal “is well established in our prior precedents,” a statement that was clearly untrue. And in support of its claim, the BIA cited to Matter of A-M-E- & J-G-U-, which as discussed only precludes groups defined exclusively by persecution.

In his decision in A-B-, Sessions relied in part on the footnote in M-E-V-G- mischaracterizing prior case law to support his claim that a particular social group must exist independently of the harm asserted, thus perpetuating the Board’s prior falsehood. As in fact no prior BIA precedent had ever held that a particular social group cannot partially be defined by persecution, the First Circuit was correct to call out the unsupported legal conclusion. As merely looking up the citation in the BIA’s footnote would have revealed the error, one could argue that Sessions’ decision lacked the rigorous legal analysis expected of such a decision.

In remanding the record back to the BIA, the First Circuit also held out the possibility of considering a more concise group defined by an asylum applicant’s gender per se. This group was suggested in the amicus brief filed in the case by Harvard Law School’s Immigration and Refugee Clinical Program. While leaving it to the BIA to decide whether gender alone may constitute a cognizable particular social group for asylum purposes, the court provided very strong reasons why it should. The BIA’s recognition of gender per se would constitute a historical correction to U.S. asylum law, putting it in line with long recognized international standards. The same 2002 UNHCR Guidelines recognized gender as falling “properly within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.”

Attorneys Jonathan Ng and Robert F. Ley of the Law Offices of Johanna Herrero represented the petitioner. Our Round Table of Former Immigration Judges is proud to have been among the distinguished amici filing briefs in the case, which included the Center for Gender and Refugee Studies, the Harvard Immigration and Refugee Clinical Program, a distinguished group of immigration law professors, and a group of faith-based organizations. Our heartfelt thanks to attorneys Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun, Grace E. Hart, and Chris Jones of the law firm of Gibson Dunn for their outstanding efforts on our brief.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished with permission.

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

The biased, substandard performance and deficient scholarship of both the Attorney General and the BIA is matter of public record. The AG is not a qualified quasi-judicial official; he’s a prosecutor, with vengeance, who harbors a very clear enforcement bias against migrants. The BIA is structured to facially look like an expert body of quasi-judicial adjudicators. But, the frequent mistakes in their decisions and the clear bias in their hiring and supervision by the Attorney General expose the unhappy truth: they are nothing of the sort. So, what’s the excuse for the Article IIIs “deferring” to decisions on questions of law from these unqualified enforcement officials masquerading, not very convincingly, as “fair and impartial adjudicators?”

Looks like “judicial task avoidance” and “abdication of duty” to me!

Article III Judges are paid to determine what the law is (and not much else). They should do their jobs rather than hiding beyond the “doctrine of false deference.”

Here’s my previously posted “take” on De Pena Paniagua: https://immigrationcourtside.com/2020/04/24/due-process-gender-based-asylum-wins-1st-cir-slams-bia-sessionss-matter-of-a-b-atrocity-remands-for-competent-adjudication-of-gender-based-asylum-claim-de-pena-paniagua-v-ba/

Due Process Forever!

PWS

05-11-20

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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

Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link. I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

DEATH IN THE GULAG⚰️: ICE Notches First Known COVID-19 Prisoner Fatality ☠️ — Advocates Have Been Warning 🆘 Of Dangers & Seeking Releases — How Many More Will Die ⚰️ in Captivity?

https://apple.news/AF9ZwIjhuQY2ICw31DyPnug

Sarah Ruiz-Grossman reports for HuffPost:

An immigrant being held in detention at an Immigration and Customs Enforcement facility in San Diego has died of COVID-19.

A 57-year-old detainee at ICE’s Otay Mesa facility, which is run by private contractor CoreCivic, died early Wednesday of complications of the coronavirus disease after being hospitalized since late April, according to San Diego County officials. This is the first reported COVID-19 death of an immigrant in ICE custody.

Carlos Ernesto Escobar Mejia was from El Salvador, according to a government report obtained by BuzzFeed News. He’d been held by ICE since January and was hospitalized April 24 after exhibiting coronavirus symptoms. He had hypertension and self-reported diabetes but was denied release from custody in mid-April by an immigration judge.

ICE and CoreCivic did not immediately respond to a request for further details.

Advocates had been warning about unsafe health conditions at the Otay Mesa detention center for weeks. The facility currently has the biggest outbreak of COVID-19 of any ICE detention center, with at least 132 immigrants and 10 ICE employees testing positive as of last week.

(CoreCivic in mid-April said it had given masks to detainees at Otay Mesa and was quarantining positive cases in “housing pods” and separating those at high medical risk.)

Of nearly 30,000 immigrants in ICE detention centers nationwide, the agency has so far tested only 1,460 for COVID-19, and more than 705 immigrants have tested positive.

Activists have been calling for the release of all people from immigration detention, warning that there is no realistic way to keep immigrants safe during a pandemic in such facilities, which have long been reported to have substandard health care and sanitation.

“This is a terrible tragedy, and it was entirely predictable and preventable,” Andrea Flores, deputy director of immigration policy at the American Civil Liberties Union, said in a statement Wednesday.

“For months, public health experts and corrections officials have warned that detention centers would be Petri dishes for the spread of COVID-19 — and a death trap for thousands of people in civil detention,” she added. “Unless ICE acts quickly to release far more people from detention, they will keep getting sick and many more will die.”

. . . .

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

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

This illustrates the point recently raised by Don Kerwin at CMS in an article posted on Courtside. https://immigrationcourtside.com/2020/05/03/don-kerwin-cms-detention-should-not-be-a-death-sentence-☠%EF%B8%8F☠%EF%B8%8F⚰%EF%B8%8F⚰%EF%B8%8F/

According to Sarah’s article, this victim was denied bond by an Immigration Judge, despite exhibiting “high risk” factors in an inherently unhealthy and unsafe detention center. Judge Jeffrey Chase and I have pointed out before that a functional Immigration Court, including a BIA committed to fair and impartial justice and willing to reign in unjustified policies and poor judgment on the part of ICE, could have avoided such tragedies. https://immigrationcourtside.com/2020/04/06/hon-jeffrey-s-chase-matter-of-r-a-v-p-bond-denial-maximo-cruelty-minimal-rationality-idiotic-timing-bonus-my-monday-mini-essay-how-eoir/

But, we have just the opposite these days. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

That means that responsibility for meaningful custody review passes to the U.S. District Courts.

Why have an Immigration Court at all if it’s going to function as a mindless “rubber stamp” on DHS Enforcement driven by White Nationalist extremist politicos like Miller? If the Immigration Courts are no longer willing or able to guarantee fair and impartial adjudications, which unfortunately appears to be the case under Billy Barr, maybe all removal proceedings and bond hearings should just be held before U.S. Magistrate Judges and U.S. District Judges until Congress establishes an independent Article I Immigration Court!

Due Process 🧑🏽‍⚖️🧑🏽‍⚖️ Forever! More Deaths ⚰️ in the New American Gulag, ☠️ Never!

PWS

05-07-20

TANVI MISRA @ ROLL CALL: The BIA’s Biased Hiring Program Is As Bogus As A Three Dollar Bill — Designed To Empower White Nationalist Nation, Deny Due Process! ☠️👎🏻 — “Everyone knows that [EOIR Director James McHenry] 👺 was changing the process along the way to ensure he got the candidates he pre-selected.”

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration/

Tanvi writes for Roll Call:

. . . .

The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.

“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”

An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”

“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”

New roles

Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.

McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.

They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.

EOIR said its office first proposed that designation in 2000.

“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.

True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.

“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.

Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.

Faster hiring process

In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.

The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.

McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.

In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.

The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.

“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.

Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”

According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.

EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.

. . . .

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

Read Tanvi’s full article at the link.

Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!

The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.

There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!

What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.

Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”

Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.

Even with tons of “undue deference” given to the BIA by the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.

The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”

INTERESTING HISTORICAL FOOTNOTE: The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.

Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:

NEW Roll Call article by Tanvi Misra – DOJ hiring changes may help Trump’s plan to curb immigration

AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation

AILA and the American Immigration Council Press Release, New Documents Reveal Immigration Judge Hiring Plan Designed to Stack the Courts, Prioritize Politics Over Justice

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

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

PWS

05-05-20

Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!

Honorable Mimi Tsankov
U.S. Immigration Judge
Eastern Region Vice President
National Association of Immigration Judges (“NAIJ”)

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/

Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:

April 28, 2020 HUMAN RIGHTS

Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul

The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

by Hon. Mimi Tsankov

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“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”

—Senator Sheldon Whitehouse

So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.

The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).

Whitehouse recounted a sentiment articulated previously by a host of legal community leaders for more than a decade, not the least of which was ABA President Judy Perry Martinez, who in a recent statement before the U.S. Congress explained that housing a court within a law enforcement agency has exacerbated an inherent conflict of interest undermining “the basic structural and procedural safeguards that we take for granted in other areas of our justice system.” See, Am. Bar. Assoc., 2019 Update Report: Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (Mar. 2019). As she explained, “this structural flaw leaves Immigration Judges particularly vulnerable to political pressure and interference in case management.” Martinez Testimony, supra, at 1.

It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.

One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).

An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.

Thomas Cizauskas from Flickr

Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.

These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).

. . . .

Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.

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

Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩‍⚖️👍🏼

The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.

These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.

While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!

Due Process Forever! Complicit Courts & Star Chambers, Never!

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

PWS

05-02-20

DUE PROCESS FARCE CONTINUES @ BIA 🤡 — Billy Barr Appoints More Anti-Asylum Enforcement Zealots To Appellate Division Of Crown’s Star Chambers!☠️☹️

Laura Lynch of AILA reports:

Hi all-

DOJ EOIR announced today that it hired 3 new appellate IJs- https://www.justice.gov/eoir/page/file/1272731/download.

Philip Montante- Batavia NY

TRAC Analysis – FY2014-2019 – Judge Montante denied 96.3% asylum cases and granted (including conditional grants) 3.7%.

Kevin Riley – Los Angeles – N. Los Angeles St. Immigration Court

TRAC Analysis – FY2014- 2019 – Judge Riley denied 88.1% asylum cases and granted (including conditional grants) 11.9%

Aaron R. Petty, Former OIL, National Security Counsel. Previously worked on Operation Janus cases.

Laura A. Lynch, Esq.

Senior Policy Counsel

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

The trashing of Due Process and fundamental fairness, as well as abuse of the merit selection system continues unabated under the Trump regime.

How long will this parody of justice continue? How many lives will be unnecessarily lost?

Due Process Forever! Star Chambers, Never!
P

PWS

05-02-20

Due Process Forever! Institutional Complicity Never!

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Due Process Forever!

PWS

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PWS

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