"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Even in the hot-button area of immigration, most Americans agree on the need to address the plight of so-called Dreamers, the undocumented immigrants brought to the United States as children. A Pew poll this summer showed that around three-quarters of Americans, including a majority of Republicans, favor granting them permanent legal status. If lawmakers could stop demagoguing long enough to pass a version of the Dream Act, iterations of which have been circulating for a while, the majority of Americans would be grateful.
Consider all of this a starting point — with other, even more promising avenues out there to explore. As always, the details matter. So does the degree to which lawmakers in both parties decide that it’s in their political interest to gum up the works. Mr. Biden and, perhaps more important, American voters will need to make clear their expectations for action and bring the necessary pressure to bear. There is common ground to be found in a host of policy areas. Political leaders should be pressed to cultivate it.
***************
Read the rest of the NYT Editorial Board’s suggestions at the link.
Sounds like a good starting point for moving forward with humanitarian actions that will benefit the common good.
In the past, the problem has been in the details of exactly what “relief” is (e.g., will it include a “path to citizenship,” and , if so, how arduous?) and who qualifies (the DACA program had a June 15, 2102 “cutoff” date, and not all of those eligible actually registered, some for fear that the information would be used to deport them). But, without Stephen Miller fouling up the works, the chances of success should be vastly improved
Let’s hope it gets done and in a fittingly generous and inclusive manner ASAP! That’s particularly true in light of the contributions that many in the DACA program have made as “essential workers” during the pandemic!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Members: “Hey, let’s celebrate! We just sent a refugee to death for not being able to describe some obscure insignia irrelevant to the case. But, the big thing is we found ‘any reason to deny’ asylum making our handler ‘Billy the Bigot’ happy! He’s out to set new killing records before Jan. 20! Maybe he’ll find us jobs at Breitbart then!” https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
On November 24, the U.S. Court of Appeals for the Second Circuit issued an unpublished decision in Malonda v. Barr. In that case, the asylum-seeker was attacked by armed soldiers when they raided his family’s home in the Democratic Republic of Congo. The soldiers raped and killed three of his sisters, and abducted his father and brother, all due to the father’s membership in an opposition political party.
The Immigration Judge acknowledged the voluminous documentation and detailed testimony in support of the claim. However, asylum was denied because Malonda couldn’t identify the soldiers’ uniforms with absolute certainty, although he stated “they were working for the government, I can say.” And because he did not credit the attackers as working for the government, the judge did not find that the attack was necessarily motivated by the family’s political opinion, but could have simply been an act of random violence not protected under asylum law.
Malonda was not the only recent agency decision to employ this thought pattern. In the BIA’s precedent decision in Matter of O-F-A-S-, an applicant for protection under the Convention Against Torture testified that he was beaten, robbed, and threatened by five men wearing police uniforms bearing the insignia of a government law enforcement agency, who were armed with high-caliber weapons and handcuffs. The Immigration Judge determined that the respondent had not met his burden of establishing that the five were police officers, as the uniforms could have been fake, and criminals also carry weapons. The IJ further noted that the five did not arrive in an official police car, and immediately departed when they heard that a police car was en route in response to the disturbance. Of course, real police officers engaging in extracurricular criminal activity would behave the same way. Nevertheless, the BIA found no clear error on appeal.
In another recent decision presently pending at the Second Circuit, asylum was denied because the applicant was unable to state with certainty from the details of the uniform he wore that one of his persecutors was certainly a police officer, although he believed that he was. The IJ therefore did not conclude that police were involved, instead considering the persecutors to be non-state actors, from whom the respondent hadn’t proven that the police were unwilling or unable to protect him. The BIA affirmed in an unpublished decision. Obviously, a finding that a police officer participated in the persecution of the asylum applicant could well have led to a different finding as to the government’s willingness to protect.
In each of the above cases, the respondent was found to be a credible witness. There are only two types of witnesses in court proceedings: fact (or “lay”) witnesses and experts. Asylum applicants are fact witnesses, describing what they experienced. Although the Federal Rules of Evidence are not binding on immigration judges, they provide the best guidance available, as the Immigration Courts have no such evidentiary rules of their own. Rule 701 of the FRE allows a lay witness to express an opinion provided that it is (1) rationally based on their own perception; (2) helpful to clearly understand the testimony or to determine a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge reserved for expert witnesses. In the above cases, the asylum seekers’ opinions that the uniformed, armed attackers were government officials fit clearly within the parameters of Rule 701.
Of course, asylum applicants are not experts on uniforms worn by the various government forces in their home countries. I doubt most country experts who testify in asylum cases would possess such specific expertise. Even if they did, those experts weren’t present to witness the event in question to be able to affirm that the uniform was in fact the official government issue. So what is the solution in cases in which the Immigration Judge harbors doubt regarding the attackers?
The UNHCR Handbook at para. 196 advises that despite all efforts, “there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” The following paragraph adds that evidentiary requirements should not be applied too strictly to asylum seekers. But the Handbook sets limits on this practice, adding that “[a]llowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.”1
It would seem that requiring absolute confirmation of the authenticity of the attacker’s uniform (which psychologists have testified is not one’s focus during a traumatic experience) places an insurmountable burden on asylum applicants. Given the purpose of asylum laws, where an asylum applicant expresses the reasonable opinion that attackers who look and behave like government officials are in fact government officials, in the absence of the type of inconsistencies flagged by the Handbook, the benefit of the doubt should be allowed to carry the day.
Addressing this issue in Malonda, the Second Circuit focused on the fact that the identity issue was tied to the question of political opinion. The court referenced its decision from earlier this year in Hernandez-Chacon v. Barr, in which it cited language from the BIA’s excellent 1996 decision in Matter of S-P- holding that political opinion is established by direct or circumstantial evidence.
The Second Circuit pointed to circumstantial evidence in Malonda’s testimony that the attackers were government soldiers motivated by the family’s political opinion. Such evidence included the facts that Malonda’s home was the only one attacked, and his father was the only resident of the street who was an active opposition party member. Furthermore, the likelihood of the attackers being anti-government rebels was undermined by Malonda’s testimony that the rebels ability to reach his neighborhood was impeded by the presence of state security forces, and that his brother, who was abducted by the attackers, was brought to a camp where he was trained to fight against (rather than for) the rebels.
In a footnote, the court noted that the BIA had added its own insinuation to the contrary by referencing general reports of rebel involvement in “widespread violence and civil strife” in the country. But the Second Circuit pointed out that such general information failed to consider that Malonda’s own region was protected by the government, and “more importantly, does not explain why the rebels would have targeted only Malonda’s house for such violence.”
The Second Circuit’s opinion in Malonda emphasizes the starkly different approaches of the 1996 BIA and its current iteration. In Matter of S-P- (an en banc decision which remains binding precedent on immigration judges and the BIA), the Board noted the difficulty in determining motive where “harm may have been inflicted for reasons related to government intelligence gathering, for political views imputed to the applicant, or for some combination of these reasons.” But the Board emphasized the importance of keeping “in mind the fundamental humanitarian concerns of asylum law,” which are “designed to afford a generous standard for protection in cases of doubt.”2
S-P- also included a reminder that a grant of asylum “is not a judgment about the country involved, but a judgment about the reasonableness of the applicant’s belief that persecution was based on a protected ground.” As the scholar Deborah Anker has emphasized, such reasonableness determinations require “that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.”3 In its decision in Sotelo-Aquije v. Slattery, the Second Circuit similarly emphasized the importance of vantage point by describing the standard as what a reasonable person would find credible “based on what that person has experienced and witnessed.”
Applying this standard, what reasonable person who had experienced and witnessed what Malonda did would say: “You know, I was pretty certain the attackers were government soldiers punishing us for my father’s political activities. But since you pointed out that I’m not completely certain about the uniforms, I guess I was mistaken. It was probably just a random incident. In which case, I can’t see any reason to fear return?”
Remarkably, that appears to have been the BIA’s approach in Malonda. Its decision lacked any indication of adopting the asylum applicant’s vantage point or applying the benefit of the doubt as described above. And while Matter of S-P- set out a rather complex set of elements for identifying motive through the types of circumstantial evidence pointed to by the Second Circuit, the present BIA pointed instead to whatever generalized information it could find in the record to justify affirming the asylum denial.
Although an unpublished decision involving a pro se petitioner that could easily evade our attention,4 Malonda underscores the need for a uniform application of the principles emphasized in the BIA’s decision in Matter of S-P-, instead of a “uniform” approach based on the ability to identify uniforms.
Notes:
Although not binding, the Supreme Court has recognized that “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform [and] has been widely considered useful in giving content to the obligations that the Protocol establishes.” INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n. 22 (1987). The BIA reached a similar conclusion in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (finding the Handbook to be a useful tool “in construing our obligations under the Protocol”).
The majority opinion in Matter of S-P- was authored by now retired Board Member John Guendelsberger. Three current members of the Round Table of Immigration Judges, Paul W. Schmidt (the BIA Chairperson at the time), Lory D. Rosenberg, and Gustavo Villageliu, joined in Judge Guendelsberger’s opinion.
Deborah E. Anker, Law of Asylum in the United States (2020 Edition) (Thomson Reuters) at 76.
Thanks to attorney Raymond Fasano for bringing this decision to my notice.
Copyright 2020, Jeffrey S. Chase. All rights reserved.
Reprinted With Permission.
***********************
Obviously, the BIA could resume court-like functions, provide scholarly, rational guidance and enforce uniformity for Immigration Judges (too many of whom lack true expertise in asylum laws), help cut backlogs, increase efficiency, and put an end to frivolous litigation by DHS which too often these days seeks to encourage IJs to deny cases where asylum grants clearly are warranted. (There was a time, at least in Arlington, when DHS Counsel actually worked cooperatively with the private bar and the Immigration Judges to promote fairness and use court time wisely on asylum cases. Those days are now long gone as the system has regressed horribly and disgracefully under the maliciously incompetent, White Nationalist, nativist, leadership of the current regime at DHS and DOJ).
But, due process, fundamental fairness, and best practices, can’t and won’t happen until the current “BIA Clown Court” 🤡 is replaced with a new group of expert Appellate Judges ⚖️👨🏻⚖️🧑🏽⚖️ from the NDPA who are “practical scholars” in immigration and human rights laws.
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
As this Court has recognized, “when [an] alien appears pro se, it is the IJ’s duty to ‘fully develop the record.’” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). Despite this long-recognized obligation, the record in this case demonstrates that this duty is not always fulfilled; and that the consequence may be unfairness and injustice to the pro se petitioner who is unable to develop the record without guidance and assistance. We respectfully submit that this Court should use this case to provide much-needed guidance to IJs on the scope of their duty to work with pro se respondents to elicit the information necessary to develop the factual record. Based upon our own extensive experience, we are of the view that this can be done efficiently and effectively by conscientious IJs, so long as the rule that they are required to do so is clear.
******************
Thanks so much to out “Team of Pro Bono Heroes” at Sullivan & Cromwell, NY:
Philip L. Graham, Jr.
Amanda Flug Davidoff
Rebecca S. Kadosh
Joseph M. Calder, Jr.
This regime has appointed mostly judges lacking experience representing individuals in Immigration Court and then compounded the problem with:
Mindless “haste makes waste” enforcement gimmicks (often supported by knowingly false or misleading narratives) imposed by political hacks at DOJ and Falls Church;
A BIA lacking expertise and objectivity that instead of focusing on due process for those in Immigration Court, spews forth “blueprints for denial and deportation” without regard for statutory, Constitutional, and human rights;
A system that has elevated “malicious incompetence” and “worst judicial practices” to a “dark art form.”☠️
TIME FOR COURAGEOUS NEW IMMIGRATION LEADERSHIP!
By Paul Wickham Schmidt
It’s time for the “EOIR Clown Show” in Falls Church to go! Bring in competent jurists and administrators from the NDPA: practical scholars and problem solvers with real life skills developed by saving lives from this broken and biased system. Real jurists with expertise in human rights and courage, who will make due process, fundamental fairness, humane values, and “best judicial practices” the only objectives of the Immigration Courts. Jurists who will courageously resist political interference and improper and unethical weaponization of the Immigration Courts by any Administration.
Let the incoming Biden-Administration know that you won’t accept failed “retreads” from the past and “go along to get along” bureaucrats running and comprising what is probably the most important and significant court system in America from an equal justice, social justice, constitutional development, and saving human lives standpoint.
This is the “retail level” of our justice system: Thefoundation upon which the rest of our legal system all the way up to a tone-deaf, flailing, failing, and generally spineless Supremes stands! This is a court system that the Biden Administration can fix without Mitch McConnell!
The members of the NDPA are the ones who have been fighting in the trenches (and at the borders) to save lives, advance social justice, insure equal justice for all, end institutional racism, and preserve our democracy in the face of a tyrannical, unscrupulous, corrupt, racially biased, anti-democracy regime and its enablers! Many have sacrificed careers, health, not to mention financial security in this fight!
Don’t let those who watched from the sidelines, above the day-to-day fray, or were part of the problem swoop in and take control after the battle has been won!
Get mad! Get vocal! Get active! Call everyone you know in the incoming Administration! Demand that the NDPA and its members be given the leadership roles they have earned and deserve in remaking EOIR and reforming a thoroughly corrupt, politicized, and dysfunctional immigration bureaucracy across our Government!
Don’t let the Dems turn their back on achievable reforms and “shut out” the reformers and problem solvers in the advocacy sector (who have “carried the water” for Dems for decades) as has been the case in the past! Don’t let the mistakes and short-sightedness of the past destroy YOUR chances for a better future!
Don’t let timidity, ignorance, indifference, and fear of “rocking the boat” in the name of justice, due process, and human dignity replace “malicious incompetence” in Government!
Due Process Forever! Same old, same old, never! It’s time for real change and reform! It’s YOUR time to shine! Let YOUR voices be heard!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
. . . .
******************
Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
J Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round Table
Asher Stockler reports for Law360:
. . . .
But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.
The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the
11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360
deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.
The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”
“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.
But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.
“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.
The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.
The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.
The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.
–Editing by Michael Watanabe.
**********************************************
Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.
That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!
Many, many, many thanks to our all-star pro bono team:
David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
Couldn’t have done it without you guys! You constantly “Make us look smart!”
I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:
Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.
Well done, fearless fighters for due process!
Rachel McFarland Legal Aid Justice Center Charter Member, New Due Process Army
This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.
Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.
I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.
Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.
Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!
The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!
Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.
It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.
It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.
It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.
Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)
Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!
The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.
The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!
And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.
The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.
American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”
And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:
Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.
Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!
ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’
The government’s data, however, tell a far different story.”
Check out the op/ed and the take down of President.
A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).
I[ngrid] E[agly]
***********************
Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.
It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.
For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”
We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!
Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.
Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.
“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.
Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.
Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.
Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.
Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.
. . . .
**************
Read Marcia’s full article at the link.
Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”
Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses!But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.
The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!
Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!
It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.
Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.
Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?
Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?
It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!
We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”
It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!
And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!
Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”
A federal judge on Thursday ordered the Trump administration not to release a report by the Presidential Commission on Law Enforcement and the Administration of Justice, finding that the group ― comprised entirely of current and former members of law enforcement ― had been “far from transparent.”
Senior U.S. District Judge John Bates, a George W. Bush appointee, issued a 45-page ruling finding that commission ― which President Donald Trump announced with fanfare at a police conference last year ― had violated the Federal Advisory Committee Act (FACA), which requires that committees be “fairly balanced” in the viewpoints represented.
Attorney General William Barr said there was a need to hear from a “diversity of backgrounds and perspectives,” but the commission was full of law enforcement officials. Bates’ order requires Barr “to ensure the Commission has a fairly balanced membership.”
Last month, as HuffPost previously reported, an elected prosecutor quit one of the commission’s working groups because he worried that it was “providing cover” for a predetermined law-and-order agenda that “will only widen the divisions in our nation.”
Bates wrote that the commission’s membership “consists entirely of current and former law enforcement officials” and that no commissioner “has a criminal defense, civil rights, or community organization background.”
“Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today,” he wrote.
. . . .
**************
Read the full article at the link.
YOUR tax dollars being squandered by corrupt AG on White Nationalist political propaganda. But, given that Billy the Bigot is siphoning off money from the public to fund the campaign of a racist President and his racist GOP “party,” that should be little surprise!
Billy is a one-man illegality machine. 🏴☠️ But, rarely does a Federal Judge call out his personal illegal and unethical conduct this clearly!
Thank you for your prayers and support this week. In the days leading up to Binsar’s habeas hearing on Friday, we are continuing to build momentum and raise our voices to God and to the people who hold secular power.
Today we gathered at the ICE Field Office in Baltimore and held a demonstration. Three of us were able to gain entry into the building and pressed the staff until they agreed to deliver our bix box of printed petitions to the Field Office Director. The District Commander that I spoke to said he had read about the case in the papers, and we should take it to the National Headquarters in DC. So we will (see below.)
Tomorrow, we are driving calls to elected representatives. Our Maryland Congressional Delegation has said that they are on board, yet in the last two weeks they have been reluctant to speak out publicly on Binsar’s behalf. We are asking them to put their names on the line and to stand with our church, regardless of whether they personally think it will affect meaningful change. I have pasted a script below. You can pass this on to other people, as the phone number lets people enter their zip codes and connect to their own state’s congresspeople.
Thursday, we are planning a faith march from Christ UMC in Southwest DC to the ICE National Headquarters. It is a 1 mile walk. We are inviting ecumenical and multifaith people to join us as we deliver four petitions with a combined total of more than 15,000 signatures. We’ll meet at 8:30am at Christ UMC and will leave for the walk at 9am, and will conclude by 10am.
Friday, Binsar’s habeas hearing is at 2:30pm. I implore you to fast and pray with me from sundown on Thursday through the hearing time on Friday. I have invited the Bishop and other conference leaders to do the same. We cannot be there physically because of the court’s restrictions, but we can be in absolute, focused solidarity.
Thank you again, and let’s keep going.
peace,
rev. kara
CONGRESSIONAL PHONE CALL SCRIPT
Universal Phone Number for Any State: 1-844-332-6361 (you can enter your zip code without listening to the whole message)
My name is __, from ___. I’m calling to ask Senator/Representative _________ to personally and publicly intervene to support a Maryland resident. Binsar Siahaan, an asylum-seeker from Indonesia, has lived in Maryland for over 30 years with his family, including two citizen children. ICE lied to Binsar and arrested him on church grounds. This is an unprecedented attack on faith communities and immigrants of faith.
I’m asking that the Senator call ICE Director Pham and express outrage at ICE’s treatment of Binsar, and ask for his immediate release and approval of his stay of removal. I also call on the Senator/Representative to initiate an investigation into ICE’s actions in this case, and hold ICE accountable to its sensitive locations policy.
—
Rev. Kara Scroggins
she/her/hers
*********************
Trump adheres to no religion except that of greed and “unenlightened self-interest.” Meanwhile, communities of faith actually engaged in carrying out Christ’s message of compassion, redemption, and outreach to the most vulnerable are being attacked by Trump’s ICE to carry out a corrupt, immoral political agenda of hate, racism, and dehumanization of ”the other.”
This is just the beginning! According to recent reports, Trump’s campaign appendage ICE plans to launch attacks on communities of color and “Democratic” cities in a perverted (and totally illegal and unethical) attempt to bolster Trump’s floundering re-election campaign!
Vote ‘Em Out, Vote ‘Em Out!
Vote for Biden,Harris and Democrats for the return of human decency, morality, reasonableness, and ethics to Government!
In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.
TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.
Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.
Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.
Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.
TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
*************************************
“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.
Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.
Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”
Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure.Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”
What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!
Due Process Forever!
PWS
09-10-20
**************************
Here’s an Addendum from Margaret Stock:
From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM] Sent: Saturday, September 12, 2020 10:17 AM To: Benson, Lenni B. Cc: Immprof (immprof@lists.ucla.edu) Subject: Re: [immprof] FW: The Life and Death of Administrative Closure
The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
NDPA Superstar ⭐️ Michelle Mendez 🎖 reports for CLINIC 🏆:
New Legal Challenge: CARECEN v. Cuccinelli
Greetings,
Representing the CARECEN and seven people with Temporary Protected Status, CLINIC, Democracy Forward, Montagut & Sobral PC and Debevoise & Plimpton LLP sued the Trump administration to block a policy issued by an unauthorized federal executive, U.S. Citizenship and Immigration Services’ Acting Director Ken Cuccinelli. The lawsuit, filed today in the U.S. District Court for the District of Columbia, seeks to stop the Trump administration from denying access to lawful permanent residency to people with TPS who legally qualify for green cards thanks to their U.S. citizen spouse or child. Cuccinelli’s action, couched as a mere “update” to the agency’s policy manual, eliminates the ability for TPS beneficiaries with prior removal orders to apply to adjust status with USCIS even though they departed the United States and returned with USCIS permission. The suit challenges the policy change as unlawful under the Administrative Procedure Act and the Constitution’s Due Process Clause, and because its author, Ken Cuccinelli, was not legally appointed to direct USCIS.
Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.
******************
Remember, folks, no human being is illegal. But, Ken “Cooch Cooch” Cuccinelli is an “illegal” serving in a rogue regime!
Many thanks to all of our NDPA fighters who brought this much needed suit!
And, think of the grotesque stupidity, not to mention cruelty and illegality, behind this USCIS “policy.” Those in TPS are part of our community. Many have been here for years, even decades, working, paying taxes, and raising families (including many US citizens). Many are now fully qualified to adjust to “green card” status under existing law, thereby regularizing their status and getting out of “limbo.”
With LPR status, and eventually US citizenship, they can reach their full potential as humans and as members of our society. That’s a “win-win” that helps us move forward and prosper as a nation.
Yet, “Cooch Cooch” and the rest of the maliciously incompetent kakistocracy at DHS stay up nights thinking of ways to “stiff” our friends and neighbors in the TPS community and to keep them from regularizing their status and achieving their full human and economic potential, not to mention traumatizing US citizen family members. Talk about fraud, waste, and abuse in Government!
Incidentally, current TPS holders would all be entitled to full Immigration Court hearings if the regime attempted to expel them by force after ending TPS. Most have strong claims to relief, from cancellation of removal to asylum and other forms of protection.
Many could apply for adjustment of status in Immigration Court and individually litigate no matter what the USCIS “policy.” With a known backlog of approximately 1.5 million cases and perhaps another 500,000 to 1 million “lost in the docket dysfunction at EOIR,” their Immigration Court dates could easily be a decade, or “2.5 Administrations” from now. So, the Cuccinelli policy is basically a way of inflicting some cruelty and racist harassment on TPS’ers eligible to immigrate, without any realistic chance of “enforced removal.” Wow, talk about using a system already FUBAR’ed, to a major extent by this regime, as an illegal “weapon against humanity!”
Where, or where, have the Article IIIs been in taking a strong, unified stand against racism and stupidity (legal term “unreasonable behavior”) by the Trump immigration regime? Cooch Cooch was determined by a Federal Court to be illegally serving at USCIS! Yet, he contemptuously remains in office inflicting illegal harm and suffering on migrants, chewing up legal resources, and insultingly wasting the time of the Federal Courts.
I sort of understand the feckless performance of the Immigration Courts, wholly owned by “Billy the Bigot.” But, what’s the purpose of an independent Article III Judiciary that performs like it’s the “King’s Court” — unwilling or unable to defend our Constitution, humanity, or even their own prerogatives against the tyranny of a dangerous scofflaw moron like Trump?
What’s their excuse for drawing their salaries? The overall systemic failure of the Article III Judiciary, starting with a tone-deaf, racially insensitive, and often eagerly complicit Supreme’s majority, in the face of Trump’s White Nationalist authoritarianism, demands serious national re-examination of the role, qualities, and character we should expect from our Article III Judiciary, assuming that our nation survives the current legal and moral debacle led by Trump and enabled by judges who failed to do their duties!
“When the Trump Administration attacks families, we will hold it accountable, be it for the next few months or the next 4 years.”
That’s the key! With far too many public officials in all three branches spinelessly “tanking” on their constitutional duties to protect our rights and defend humanity from tyranny, the soldiers of the NDPA are among the courageous defenders of democracy and leaders of the long and challenging climb to equal justice and national decency. Support them by throwing the GOP — the anti-American party of bias, hate, lies, racism, institutionalized stupidity, and chaos — out at every level of government!
We’ll never get to equal justice for all with politicos, legislators, judges, and bureaucrats who don’t believe in it! Folks who quote and “honor” MLK, Jr., one day of the year and spend the rest of it trampling on his dreams and trashing his values!
Thanks to my good friend, colleague, and “NDPA General” Michelle and others for standing up to “Cooch the Illegal” and his toxic anti-American, scofflaw efforts to destroy our nation!
Washington, DC – Today, the Department of Justice (DOJ) published a sweeping proposed rule in the Federal Register that would overhaul Board of Immigration Appeals (BIA) processes and remove due process safeguards with an aim of fast-tracking deportations. The public has 30 days to comment on the proposed rule.
AILA’s Senior Policy Counsel, Laura Lynch, stated, “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges. Putting this much power in the hands of an administrator who is not even a judge will give the Trump administration unprecedented ability to manipulate the courts in furtherance of its deportation agenda. The need for independent immigration courts has never been more urgent, or clear. This exemplifies why AILA is calling on Congress to pass legislation creating an immigration court system separate and independent from DOJ.”
AILA’s First Vice President, Jeremy McKinney, added, “The realities of this proposed rule are grim—more power entrusted to a hand-selected bureaucrat, increased pressure for speedy decisions at the cost of due process, and a dismantling of an appeals process vital to a fair day in court. Deeply troubling is the rule’s codification of the prohibition former Attorney General Jeff Sessions tried to impose on judges’ ability to administratively close cases, a fundamental authority judges need to efficiently manage their overloaded dockets. At least two circuit courts have rejected Sessions’ analysis and overturned the decision. The proposed rule is part of a larger effort by the DOJ to exert improper political influence over immigration court decisions and to turn the immigration courts into an enforcement mechanism. It’s a power grab, pure and simple.”
###
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.
Laura A. Lynch, Esq.
Senior Policy Counsel
***************
Thanks, Laura, for all that you and AILA do to fight for equal justice for all and to combat the evil influence of Billy the Bigot and his toadies over at EOIR!
Litigate, litigate, litigate! Force the Article IIIs to confront on a mass basis the human carnage, overt xenophobia, mockery of justice, and racism that they have fostered with their timid and indolent approach to the massive assault on our justice system and human dignity from Billy the Bigot and the White Nationalist regime! Make a record for future generations to see who stepped up, who chickened out, and what kind of individuals hid behind their black robes while humanity suffered and the lives of some of the most vulnerable were unlawfully and unethically destroyed.
There is no excuse for the continued, unconstitutional EOIR abomination! Past time for the Article IIIs to call halt to this perverted charade and transfer all immigration hearings to U.S. Magistrate Judges until Congress and the Executive create a new, independent, constitutionally compliant Immigration Court!
Trump cabinet officials voted in 2018 White House meeting to separate migrant children, say officials
“If we don’t enforce this, it is the end of our country as we know it,” said Trump adviser Stephen Miller, say officials present at a White House meeting.
by Julia Ainsley and Jacob Soboroff | NBC NEWS
WASHINGTON — In early May 2018, after weeks of phone calls and private meetings, 11 of the president’s most senior advisers were called to the White House Situation Room where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.
Trump’s senior adviser, Stephen Miller, led the meeting and, according to the two officials, he was angry at what he saw as defiance by Department of Homeland Security Secretary Kirstjen Nielsen.
It had been nearly a month since then-Attorney General Jeff Sessions had launched the Trump administration’s “zero tolerance” policy, announcing that every immigrant who crossed the U.S. border illegally would be prosecuted, including parents with small children. But so far, U.S. border agents had not begun separating parents from their children to put the plan into action, and Miller, the architect of the Trump administration’s crackdown on undocumented immigrants, was furious about the delay.
Those invited included Sessions, Nielsen, Health and Human Services Secretary Alex Azar and newly installed Secretary of State Mike Pompeo, according to documents obtained by NBC News.
Nielsen told those at the meeting that there were simply not enough resources at DHS, nor at the other agencies that would be involved, to be able to separate parents, prosecute them for crossing the border and return them to their children in a timely manner, according to the two officials who were present. Without a swift process, the children would enter into the custody of Health and Human Services, which was already operating at near capacity.
Two officials involved in the planning of zero tolerance said the Justice Department acknowledged on multiple occasions that U.S. attorneys would not be able to prosecute all parents expeditiously, so sending children to HHS was the most likely outcome.
As Nielsen had said repeatedly to other officials in the weeks leading up to the meeting, according to two former officials, the process could get messy and children could get lost in an already clogged system.
Miller saw the separation of families not as an unfortunate byproduct, but as a tool to deter more immigration. According to three former officials, he had devised plans that would have separated even more children. Miller, with the support of Sessions, advocated for separating all immigrant families, even those going through civil court proceedings, the former officials said.
While “zero tolerance” ultimately separated nearly 3,000 children from their parents, what Miller proposed would have separated an additional 25,000, including those who legally presented themselves at a port of entry seeking asylum, according to Customs and Border Protection data from May and June 2018.
That plan never came to fruition, in large part because DHS officials had argued it would grind the immigration process to a halt. But after Sessions’ announcement that all families entering illegally would be prosecuted, the onus had fallen on DHS to act.
At the meeting, Miller accused anyone opposing zero tolerance of being a lawbreaker and un-American, according to the two officials present.
“If we don’t enforce this, it is the end of our country as we know it,” said Miller, according to the two officials. It was not unusual for Miller to make claims like this, but this time he was adamant that the policy move forward, regardless of arguments about resources and logistics.
No one in the meeting made the case that separating families would be inhumane or immoral, the officials said. Any moral argument regarding immigration “fell on deaf ears” inside the White House, said one of the officials.
“Miller was tired of hearing about logistical problems,” said one of the officials. “It was just, ‘Let’s move forward and staff will figure this out.'”
Frustrated, Miller accused Nielsen of stalling and then demanded a show of hands. Who was in favor of moving forward, he asked?
A sea of hands went up. Nielsen kept hers down. It was clear she had been outvoted, according to the officials.
In the days immediately following the meeting, Nielsen had a conversation with then-CBP Commissioner Kevin McAleenan inside her office at the Ronald Reagan Building, and then signed a memo instructing DHS personnel to prosecute all migrants crossing the border illegally, including parents arriving with their children.
. . . .
*******************
Read the rest of the report, detailing the full extent of this outrageous, illegal, and immoral conduct by corrupt high-level officials of our Government, at the link. This is what your tax dollars have been used for, while legitimate needs like coronavirus testing, disaster relief (see, Iowa), mail delivery, naturalization services, unemployment relief, etc., go unmet!
So, separated families and children continue to suffer, much of the harm and trauma irreparable and life-defining. This “policy” was so clearly illegal and unconstitutional that DOJ attorneys conceded its unconstitutionality in Federal Court.
However, in an ethics-free DOJ, those same lawyers falsely claimed that there was no such policy. Rudimentary “due diligence”on their part, required by professional ethics, would have revealed that their representations on behalf of corrupt institutional “clients” were false.
The article also confirms the complicity of Kevin “Big MacWith Lies” McAleenan in gross, intentional human rights violations. Courtsideexposed “Big Mac” long ago!
While the victims continue to suffer, Miller, Sessions, Nielsen, Big Mac, and other cowards who planned and carried out these “crimes against humanity,”directed at some of the most vulnerable humans in the world, remain at large. Some, like Miller, actually remain on the “public dole.” Likely, so do the DOJ lawyers who unprofessionally defended and helped obscure this misconduct in Federal Court.
It’s also worth examining the role of U.S. Magistrate Judges and U.S. District Judges along the southern border, most of whom turned a blind eye to the transparent racial and political motives, not to mention the grotesque misallocation of public resources, driving Sessions’s “zero tolerance”misdirection of scarce prosecutorial resources from serious felonies to minor immigration prosecutions.
As I’ve been saying, “Better Federal Judges for a better America!” And, better Federal Judges start with removal of the Trump regime as well as the ousting of “Moscow Mitch” and the GOP from Senate control.
Will there ever be accountability? Our national soul and future might depend on the answer!
Had enough wanton cruelty, neo-Nazism, corruption, illegality, immorality, cowardice, lies, false narratives, racism, stupidity, and squandering of tax dollars on nativist schemes and gimmicks? Get motivated and take action to get our nation back on track to being that “City upon a Hill” that the rest of the world used to admire and respect!
This November, vote like your life and the very future of humanity depend on it! Because they do!
So what does this all mean? It means that if you are personally connected to the president or have information that could hurt the president, or both, you can be treated far more favorably by this attorney general, as he will bend the law and facts to the president’s desired result. His [Billy the Bigot’s] actions in U.S. v. Stone strike at the heart of the Aristotelian principle central to the rule of law, that we treat likes alike. John Locke warned that “where law ends, tyranny begins.” Now, more than three centuries later, that statement applies to the head of the American system of justice.
*********************
Read the rest of the article at the link.
Billy is destroying the rule of law. Look that the absolute disaster he has created in America’s Star Chambers (a/k/a Immigration “Courts” that aren’t).
But he has help. The GOP Senate that signals a refusal to consider impeachment and Federal Judges who fail to call out his totally unethical, corrupt, and often illegal conduct also are to blame! He should have been removed from office, stripped of his law license, and perhaps prosecuted. Instead, he’s free to abuse.
When the career prosecutors resign from a case, that’s a clear sign that something’s wrong! Yet those empowered to stop the misconduct look the other way.
Let’s put this in perspective. This is an regime that has prosecuted individuals and taken their children away from them for the “crime” of entering the U.S., turning themselves in to the Border Patrol, and applying for asylum. Yet, convicted felons with ties to the President are given preferential treatment.
Stone, a felon, gets favorable treatment, allegedly because of COVID-19. Meanwhile, “civil” immigration detainees who have not been convicted of anything, and are merely waiting for a fair hearing process in Barr’s wholly owned “courts” which he has grossly mismanaged into total dysfunctionality, are subjected to COVID-19 as part of DHS’s “Detain Until Dead” (“DUD”) policy.
Due Process Forever! Corrupt AG’s (Like Barr & Sessions), Never Again!
The Trump administration announced on Tuesday that it will continue to defy a federal court order compelling the full restoration of DACA, the Obama-era program that allows 700,000 immigrants to live and work in the United States legally. By doing so, the administration has chosen to flout a decision by the Supreme Court, effectively rejecting the judiciary’s authority to say what the law is.
Donald Trump first attempted to rescind the Deferred Action for Childhood Arrivals program in September 2017, a move that would’ve stripped its beneficiaries of work permits and subjected them to deportation. But his administration continually cut corners, failing to explain the basis for its decision and refusing to consider the impact of DACA repeal on immigrants, their communities, and their employers (including the U.S. Army). This June, the Supreme Court ruled that the administration’s actions were “arbitrary and capricious” under federal law and therefore “set aside” DACA repeal.
To implement that decision, U.S. District Judge Paul Grimm compelled the administration to restore DACA to its pre-repeal condition on July 17. Grimm’s order required the Department of Homeland Security to let DACA beneficiaries renew their status for two years, accept new applicants, and restore “advance parole,” which permits travel outside the country. But DHS did not do that. Instead, the agency maintained that it would reject new DACA applicants. It also declined to accept DACA renewals or reinstate advance parole.
At a hearing Friday, Grimm tore into Justice Department attorneys for flouting his order. The government’s actions, he explained, created “a feeling and a belief that the agency is disregarding binding decisions” from the Supreme Court. DOJ attorneys insisted that DACA applications were merely “on hold,” or “placed into a bucket,” while the administration decided how to proceed. But, as Grimm retorted, “it is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket.” The judge once again directed DHS to comply with the law by accepting new applicants and processing renewals.
Incredibly, the agency has decided to disobey this order, as well. On Tuesday, acting DHS Secretary Chad Wolf declared that it would not accept new applications and would only grant one-year extensions to current beneficiaries “on a case by case basis.” This tactic will make it easier for Trump to deport DACA beneficiaries if he wins reelection, since their status will expire sooner. The agency will also deny advance parole “absent exceptional circumstances.” This new policy is nothing less than brazen defiance of a federal court ruling. Grimm, and the Supreme Court itself, ordered DACA’s full resuscitation, which requires the acceptance of new applicants and the conferral of two-year renewals. There is simply no legal basis for DHS’s zombie version of the program.
. . . .
************************
Read the rest of the article at the link.
Equal justice for all and the easing of racial tensions in America will not happen until we get an Executive, Legislators, and Judges with the courage and integrity to make it happen. We’re a long way from that now.
The timid approach of the Legislative and Judicial Branches to Trump’s and his cronies’ almost daily abuses of our legal system have sent the message that the law is largely meaningless in the age of Trump, except if you are a person of color, asylum seeker, immigrant, or, perish the thought, all three, in which case the law only applies to you when the effects are adverse to your interests but not to protect you. On the other hand, if you are a Trump official or a DOJ lawyer, compliance with the law is at most a suggestion and ignoring it has few meaningful consequences.
The Trump regime has exposed the deep flaws and weaknesses in our democratic institutions. We need better public officials in all three branches of the Government. Better judges will take awhile because of life tenure. But, a better Executive, Legislature, and public servants can be achieved with a “big push” in November to expel the malicious incompetents at all levels. And, that will set the stage for eventually achieving a better Federal Judiciary that will stand up to tyranny and lawlessness and show that “nobody is above the law” is more than just a feckless catchphrase.
Due Process Forever! A Feckless Legislature & Federal Judiciary, Never!
