"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.
Ann is active in evaluation circles nationally. Her evaluation practice and podcast center on Georgia and its community-based social service organizations.
On the pod we make the following points:
(1) Advocacy is an important tactic to achieve social change goals.
(2) Strong advocacy is led by affected communities. Allies in the nonprofit and philanthropy sectors provide important support to community-led change.
(3) Elected officials need and want input from service providers in their districts. Whether you have lots of time for advocacy or only a very limited amount of time, your input can make a difference.
(4) Help is available for community organizations that want to investigate advocacy but are not sure what they are legally permitted to do. Bolder Advocacy, a program of Alliance for Justice, provides technical assistance and training.
Thanks, Kathleen, my friend, and Ann for putting this important guidance together and making it accessible!
Also, a special “shout out” to Bolder Advocacy at Alliance for Justice for their expertise in helping 501(c)(3) orgs “color within the lines” especially during these challenging times.
As I constantly preach, expertise is important, even if Democrats too often “don’t get that” when dealing with human rights, and other social and racial justice issues.
These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.
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Read Austin’s findings at the link.
The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team.
Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better.
The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it
WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.
The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.
…
Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.
Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.
Welcome and long, long, long overdue news! But, is it too little, too late?
Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.
Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.
In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!
The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.
Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.
Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.
The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.
Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.
In other words, Garland has been a disaster for those committed to due process, racial justice,equal treatment under law,and a diverse, welcoming, stable American democracy.
Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!
Lisa Brodyaga, Crusading Lawyer for Immigrants’ Rights, Dies at 81
She became a folk hero representing asylum seekers fleeing violence in Central America, setting up shop in the Rio Grande Valley and building a refuge camp.
As leftist revolution and U.S.-backed counter-insurgencies spread through El Salvador and Guatemala in the early 1980s, Central America became awash in bloodshed, sending refugees fleeing to the United States border in hopes of a new life.
When they got there, a combative immigration lawyernamed Lisa Brodyaga, who had only recently passed the Texas bar exam, was waiting.
She was running Proyecto Libertad, a pro bono legal initiative in Texas representing asylum seekers, and by the decade’s end she had helped defend thousands in court. She went on to earn a reputation as a litigious thorn in the side of federal border enforcement agencies for the next 40 years.
“Lisa was a leader in a whole movement of lawyers who decided to approach the representation of immigrants with a civil rights consciousness,” said Susan Gzesh, an immigrant rights expert who teaches at the University of Chicago. “She helped firmly establish that undocumented asylum seekers have rights under our Bill of Rights. She taught immigration lawyers to not be afraid to go into federal courts.”
Ms. Brodyaga (pronounced brod-YA-ga) died on Oct. 28 at her home at a refuge camp she founded near San Benito, Texas. She was 81. The cause was lung cancer, her son, Paul Mockett Jr., said. Her death was not widely reported at the time.
Wearing her hair in a long single braid down her back, Ms. Brodyaga was known to show up at court wearing sandals or cowboy boots. If the federal prosecutors she faced smirked at first, it was because they were uninitiated. By lunch break they were often stepping outside to collect themselves after the verbal barrage Ms. Brodyaga had directed at them in defense of her client.
“I like to be underestimated,” she once told law students at the University of Miami. “I like to have people think, ‘She’s just a hick lawyer.’” She added: “Go ahead, I dare you. Dismiss me.”
In the mid-1980s, as war raged in El Salvador, members of the independent Human Rights Commission of El Salvador were imprisoned by the country’s government, and Ms. Brodyaga traveled there to check on their condition.
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Read the complete tribute/obit at the link!
“Go ahead, I dare you. Dismiss me.”
That’s something to which today’s talented, dedicated, grossly under-appreciated NDPA lawyers can relate!
As an elitist who never had to operate “in the trenches of immigration law,” AG Garland obviously takes your and your colleagues’ legitimate demands for long overdue radical EOIR reform, real practical immigration/human rights expertise, and potential judicial and administrative talent “for granted” as he “busies himself” with “more important things” and runs our immigrant justice and asylum systems even more deeply into the ground (a hard concept to grasp after four years of Sessions & Barr — but progressive advocates had better start looking at Garland in a “new Miller Lite” and acting accordingly).
It looks like the only way you are going to get Garland’s attention is to keep taking him and his error-prone, anti-immigrant, Trump-era-holdover BIA “to the cleaners” in Federal Court — in the mold of the late, great, Lisa B!
Many thanks to my good friend and NDPA warrior queen Deb Sanders, who’s cast in that same mold as Lisa, for alerting me to this article!
NPR: President Biden had an ambitious agenda to overhaul the nation’s border policies. But as the end of the year approaches, many of those proposals have been blocked, reversed or simply abandoned.
Reuters: The Biden administration on Wednesday asked the U.S. Supreme Court whether it needed to continue to implement a Trump-era policy that has forced tens of thousands of migrants to wait in Mexico for the resolution of their U.S. asylum cases. See also ‘Remain In Mexico’ Renewal May Bring More Solo Migrant Kids
AP: Since the U.S. withdrawal, U.S. Citizenship and Immigration Services has received more than 35,000 applications for humanitarian parole, of which it has denied about 470 and conditionally approved more than 140, Victoria Palmer, an agency spokesperson, said this week. See also Months later, Afghan evacuees abroad and at US bases still wait to be resettled.
KQED: Advocates say the current system has more safeguards for migrant families and isn’t placing them in detention facilities, but the accelerated pace still makes it tough for asylum seekers like López to find legal representation.
Law360: Federal courts in 2022 will grapple with immigration law questions ranging from the extent of the president’s authority to set immigration enforcement priorities to federal courts’ ability to review immigration decisions made by the executive branch. Here, Law360 breaks down the cases to watch.
ImmProf: The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the “Remain in Mexico” program.
CA2: In light of the recent surge in Covid-19 infections, beginning January 4, 2022 oral arguments will be conducted remotely, by Zoom or teleconference.
LexisNexis: Lima-Gonzalez v. Garland “Lima-Gonzalez’s NTA did not contain the information required to trigger the stop-time rule. See Niz-Chavez, 141 S. Ct. at 1478-79, 1485; see also § 1229(a)(1)(A)–(G). Neither did any of the subsequent notices of hearing. As a result, the Government has not furnished Lima-Gonzalez with the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct…
WaPo: Three Illinois counties with such federal agreements faced a Jan. 1 deadline to end contracts. While one in downstate Illinois complied last year, two others are involved in a federal lawsuit challenging the law. The case was dismissed last month, but a federal judge on Thursday granted an extension while an appeal is considered. Authorities in McHenry and Kankakee counties now have until Jan. 13.
AILA: DOS proposed rule which would raise several nonimmigrant visa application processing fees, the fee for the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee. Comments are due 2/28/22. (86 FR 74018, 12/29/21)
AILA: USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)
AILA: Effective December 31, 2021, 12:01 am (ET), Presidential Proclamation 10315 was revoked, thus rescinding travel restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. Vaccine requirements remain in effect.
AILA: USCIS stated that healthcare workers with a pending EAD renewal application, Form I-765, and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD applications. Proof of employment will be required.
Somalia: Situation of ‘Westernised’ Returnees (AFR2021-16)
Mexico: Persecution by and local/national presence of Cartel Jalisco and Familia Michoacana (AME2021-17)
Afghanistan: Treatment of Family Members of Human Rights Activists and Former Government Supporters after the Taliban Take-over (ASI2021-13)
Afghanistan: Availability of Psychiatric Treatment for Returnees with Mental Health Conditions and Treatment of Returnees with Mental Health Conditions by the Taliban (ASI2021-12)
Egypt: Opposing Female Genital Mutilation (FGM), Social Impact, and Availability of State Protection (MEN2021-18)
Egypt: Christians in Egypt & Obtention of Citizenship (MEN2021-17)
EOIR: Appearance Requirements at the New York – Varick Immigration Court (attached)
The problem with “ADR” @ EOIR is chronic! It’s one that Garland seems determined to repeat, despite ample advice to the contrary.
Also, he’s ignored the availability of many “practical experts” on the outside who, if appointed to key EOIR positions, could have helped him solve this without stomping on due process (although, I admit the solution would have been easier in March 2021, when Garland was sworn in as AG, than it is after 9 months of his making it worse — not to mention that his “defiant tone-deafness” has probably “turned off” some of the top-flight talent he needed to “reach out” to). As the KQED article points out:
“But there’s a lot of room for improvement, and I don’t know if the people that are being named to supervise this actually know what’s happening in the trenches.”
Duh! That’s what all of us have been saying. Truth is, they aren’t the right people, and they don’t know what’s happening. Not by a long shot!
I also understand why Torres, who’s trying to maintain a relationship with Garland’s “Clueless Crew” is trying to be charitable.
But, as someone not currently “out there in the trenches,” I don’t have to be so reticent. So, I’ll say what she can’t. This is a totally unacceptable and inexcusable performance from Garland!
Another reason why this program is a massive failure is that, like their ADR-promoting, backlog-building predecessors, Garland & Mayorkas started this misguided and mishandled program without seeking the advice, counsel, and support of the pro bono lawyers who have to staff it to make it work!
Think of the total absurdity of what Garland is doing here! While a pro bono (or low bono) lawyer is having already prepared cases “orbited” years out on the docket (a process that usually requires re-preparation of the entire case), the phone is ringing off the hook with desperate, perspective new clients given unrealistically expedited hearing dates that should have been used for the cases “orbited” to the end of the docket.
Also, having not practiced privately for many years, Garland appears to have forgotten the Code of Ethics.
Attorneys are obligated not to take on work (even pro bono work) that they can’t professionally and timely handle.
Yet, Garland is pushing them to do exactly that! The choice is let folks try to prepare their own cases (literally tantamount to a “death sentence” in many cases); or
Take on work you can’t handle (a clear ethical violation that could have the same unfavorable result for the client).
There actually are ways of working with outside experts to increase pro bono representation. One of the most promising is the the amazing VIISTA Program created and run by Professor Michele Pistone at Villanova Law to train non-attorney “Accredited Representatives” to handle pro bono asylum cases.
I have no knowledge that Garland or anyone at EOJ/EOIR has ever reached out to Professor Pistone, despite recommendations that Garland do so.
Worse yet, Garland has allowed his “EOIR Clown Show” to also create a “new backlog” in the approval process for Accredited Representatives! Talk about clueless, counterproductive mismanagement!
Garland’s mis-handling of EOIR and his new round of “Aimless Docket Reshuffling” raises serious issues about his own performance.
Whatever happened to Democratic oversight of EOIR in Congress? Why is Garland getting a “free pass” on mismanagement of EOIR, his furtherundermining of Due Process in Immigration Court, and his disrespectful treatment of the immigration pro bono and low bono bar?
For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.
So what happens when the Individual Hearing is canceled?
“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”
The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.
Why does this happen?
There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.
And then we check the online system and find that the case is off the docket.
What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.
“I’m double booked today, so let’s put off your heart surgery until 2023.”
Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.
Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.
“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”
If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.
It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.
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Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.
The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.
At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction, mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”
In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be!
In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?
Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs.
Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.
But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.
It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing” has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?
These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.
We deserve better from our legal system!
Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎
Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling.☠️
Attorney General Merrick Garland’s “limited vision” for EOIR is a continuing nightmare for those sentenced to appear and practice before his stunningly dysfunctional and “highly user unfriendly” Immigration “Courts.” Isn’t it high time to insist that those given responsibility for stewardship over America’s largest — and probably most consequential — Federal “Court” system actually have represented humans before those “courts?” PHOTO: Thomas Hawk Creative Commons Amateur Night
Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”
Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town
Free NYSBA asylum training CLE webinar Dec. 13 1-2 pm ET
Are you considering handling your first pro bono asylum case, but unsure of how to proceed? This free one-hour CLE training sponsored by the New York State Bar Association will orient you to the fundamentals of asylum eligibility and procedure, common issues to consider, and mentorship possibilities. Handouts will be provided.
When: Monday December 13, 2021, 1-2 pm ET
Where: online
Speakers: Victoria Neilson (Managing Attorney, Catholic Legal Immigration Network), Rebecca Press (Legal Director, UnLocal, Inc.), and Steve Yale-Loehr (Cornell Law School)
Thanks, Steve, my friend, for passing this on! I’m grateful for all you do to educate, guide, support, and most of all inspire the NDPA in the never-ending fight to force our Government to make due process and fundamental fairness for all persons in America, regardless of race, creed, or status, a reality rather than the cruel farce it is today!
Never has the need for talented pro bono representation in Immigration Court been greater.
And, the Garland DOJ’s indifference to long overdue due process, quality control, personnel, and best practices reforms in the broken and backlogged EOIR system means that the battle to save lives and force change through aggressive litigation is just beginning and ultimately will succeed!
The good news: Given the endemic lack of expertise, discombobulated administration, and disregard for quality at EOIR, the “talent balance” favors the NDPA! Many deserving lives can be saved and at least some degree of accountability forced on Garland’s dysfunctional EOIR through aggressive, well prepared litigation that makes compelling records, advances correct interpretations and applications of the law, and resists and triumphs over the “race to the bottom” that has destroyed and perverted justice in our Immigration Courts.
Sign up today! It will be the “best hour” you spend next week!
Please thank them all on my behalf. I’m extremely grateful for what each of them did on my case.” This is what our client, E-K- said upon receiving well wishes from several of his former student-attorneys after he was sworn in as a U.S. citizen yesterday. Please see the attached photo of E-K- with Prof. Vera after his oath ceremony. E-K- authorized our use of his picture.
E-K- became a Clinic client in 2009 after an unsuccessful interview at the Arlington Asylum Office. In February 2010, E-K-, a native of Cameroon, had his first Individual Calendar Hearing based on his political opinion and imputed political opinion following his involvement in a sit-in and his presence during a protest. DHS appealed the initial grant of asylum and on remand the Board of Immigration Appeals instructed the Immigration Judge to pay attention to credibility. However, the Immigration Clinic and E-K- prevailed again in 2013 and the asylum grant was finalized! The Clinic then assisted E-K- with his green card application, naturalization application, and naturalization interview. Next up: his wife’s green card application!
Please join me in congratulating Alexa Glock, Anca Grigore, Rebekah Niblock, Victoria Braga, Alex North, Jonathan Bialosky, and Paulina Vera, who all worked on the case.
Real life success stories from real life humans represented by well-trained law students in a “Surreal Immigration Court System!”
Brings to mind the disgraceful incident when former Trump-Era EOIR Director James McHenry created a bogus “Fact Sheet” with a ludicrous narrative in a dishonest attempt to show that lawyers and knowing individual rights in Immigration Court were irrelevant to success.
McHenry’s lies, myths, and intentional distortions were universally panned by immigration experts as reported by Courtside at the time.
Under Judge Garland, the DOJ claims to recognize and promote representation in Immigration Court. But, leaving aside the mushy rhetoric, their actions say otherwise:
“Dedicated Dockets” and sloppy mail-out notices established without consultation with the private bar;
Proposed asylum regulations almost universally opposed by the private bar;
Failure to slash the overwhelming, due process inhibiting, 1.5 million case backlog;
Continued “Aimless Docket Reshuffling” fueled by changing and misplaced administrative “priorities”that totally ignore the needs of the pro bono bar;
Continuing support for “imbedded Immigration Courts and TV Courts” established in or near DHS Detention Centers located in obscure places where attorneys are not easily obtainable;
Overly restrictive and widely inconsistent bond determinations in Immigration Court that inhibit effective representation;
Ridiculous backlog of Recognition and Accreditation applications that impedes new opportunities for well-qualified pro bono representatives in Immigration Court (See, e.g., VIISTA Program, Villanova Law);
Failure to “swap out” a legally substandardly performing BIA and some Immigration Judges for “real, well-qualified Judges with immigration and due process expertise;”
Long-delayed e-filing, making pro bono representation more difficultand less efficient;
Overall lack of dynamic court management and appropriate professional dialogue with the private bar;
Substandard EOIR “judicial training” that puts undue burden on private attorneys, particularly those operatingpro bono;
Lack of positive precedents, particularly on asylum, that would help parties and judges move many “grantable” asylum cases through Immigration Courts fairly, efficiently, and consistently with due process and “best practices;”
Continuing lawless use of Title 42 @ Southern Border causing diversion of legal resources that could otherwise be channeled into representation!
In other words, the DOJ under Garland has failed to deliver on the promise of restoring the rule of law and promoting representation in Immigration Court. Seems like nothing short of Article I will “get the job done!”
It’s painfully obvious that the politicos running the dysfunctional Immigration Courts @ DOJ have never actually had to practice before them, particularly pro bono! So, they just go on repeating many of the uninformed mistakes of their predecessors!
“[W]ithout having knowledge, we’ll go directly to the slaughterhouse!” Creative Commons License“Do you still want to talk to a lawyer, or are you ready to take a final order?” “Justice” Star Chamber StyleEmma Winger Staff Attorney American Immigration Council PHOTO: Immigration Impact
“Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the United States, he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.
Despite passing the government’s initial screening and having a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”
Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent October 29 by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.
This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.
Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.
The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet the vast majority of detained people — over 70% — faced immigration courts without a lawyer this year.
ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.
Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.
As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.
The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.
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A “Jim Crow Mentality” of never being held accountable for abuses of law or human morality permeates the politicos, legislators, and Federal Judges of both parties responsible for enabling and upholding this toxic system.
Nowhere is this more obvious than at the DOJ Civil Rights Division. While pontificating on racially abusive local police policies and actions, these folks go to great lengths to overlook the DOJ-run “Star Chamber Courts” embedded in DHS’s “New American Gulag” that disproportionally harm persons of color and deny them basic legal, civil, and human rights every day.
This system is thoroughly rotten! Yet, Garland’s DOJ “defends the indefensible” in Federal Court almost every day.
As a retired immigration judge, I have watched with concern reports of the surge of unaccompanied immigrant children crossing the border into the United States. There are many reasons for concern—their housing, their health, their safety. To me, there is an additional, very real, and often overlooked question looming on the horizon: What will happen when these children, even toddlers and babies, appear alone in immigration court?
Yes, alone. While a person in immigration proceedings is entitled to be represented by a lawyer if they can afford it, there is no constitutional or even statutory right to appointed counsel in immigration proceedings. That means those who cannot afford a lawyer must appear in court alone, including children.
While I am pleased to see the Biden administration plans to provide government-funded legal representation for certain immigrant children in eight U.S. cities, this new initiative is still a far cry from the universal representation needed to support children in removal proceedings.
Imagine, if you can, a child — 2 years old, 10 years old or 17 years old — appearing before an immigration judge alone. How does a child, already intimidated and confused by the courtroom setting, understand the nature of the court proceedings and the charges against them? How can a child understand the complexities of immigration law, their burden of proof, and possible defenses against deportation? The short answer is they cannot.
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Read the rest of the op-ed at the above link.
The “Fair Day For Kids in Court Act of 2021” is endorsed by the “Round Table” ⚔️🛡 among many other groups in the NDPA!
Here’s a summary (courtesy of Hon. “Sir Jeffrey” S. Chase):
Senator Mazie Hirono (of [Round Table “Fighting Knightess” Judge] Dayna Beamer’s home state of Hawaii) plans to introduce the attached bill on Thursday, that would provide counsel for unaccompanied children in Immigration Court by:
Clarifying the authority of the federal government to provide or appoint counsel to noncitizens in immigration proceedings;
Requiring the appointment or provision of legal counsel to all unaccompanied children in proceedings unless they obtained counsel independently;
Mandating access to counsel for all noncitizens in CBP and ICE facilities;
Requiring that, if the government fails to provide counsel to an unaccompanied child and orders that child removed, the filing of a motion to reopen proceedings will stay removal; and
Requiring government reporting on the provision of counsel to unaccompanied children.
Here’s the text of the bill, which will be introduced by Sen. Hirono later this week:
Thanks Sarah and Jeffrey! So pleased to be part of the “support group” for this long-overdue and badly needed legislation that would do what to date Congress, the Federal Courts, and DOJ have failed to do: Enforce the Due Process Clause of the Fifth Amendment in Immigration Court!
Wendy Young President, Kids In Need of Defense (“KIND”)
And, of course, we should never forget the ongoing, daily work performed by NDPA Superhero 🦸🏻♂️ Wendy Young and Kids in Need of Defense (“KIND”) in ending the disgraceful blot on American justice of unrepresented kids in Immigration Court:
Dear Paul,
I met Maria* in immigration court. The judge sat in his robes behind the bench when he called her deportation case.
A trial attorney from the Department of Homeland Security sat at the front, prepared to argue for Maria’s removal from the U.S.. Maria was by herself without a lawyer by her side.
She was five years old.
She approached the bench, wearing her nicest clothes, clutching a doll. She sat behind the respondent’s desk, barely able to see over the microphone. The judge asked her a number of questions about why she was in the US and about her life here, none of which she could answer. Her eyes grew bigger and bigger as she sat silently, until he finally dismissed her and told her to come back at a later date. As she left the court, he asked her what the name of her doll was. In Spanish, she replied, “Baby Baby Doll.” That was the only question she could answer.
This October, KIND is honoring the pro bono attorneys who have helped more than 27,000 children referred to KIND receive legal representation that often means the difference between relief and deportation and, by extension, a child’s safety or danger.
Paul, these are just a few ways we’ll put your gift to work, but know that your donation in ANY amount is critical to the number of children we can reach, and represent, through the amazing efforts of our pro bono attorney network.
These kids are scared, they are traumatized. They are intimidated. And without the services provided by organizations like KIND, they are all alone.
Hello, this is Deanna Garcia with today’s edition of Early Arrival. You can email me at deanna.garcia@documentedny.com.
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NJ Immigrant Detainees Worried About Transfers as ICE Contracts End
📍 Documented Original
As New Jersey jails began to terminate their contracts with Immigration and Customs Enforcement, the agency has started sending immigrant detainees to other jails in the U.S., further away from their families and friends. ICE told lawyers that the agency can’t release their clients because it considers them a public safety threat, even though majority of them are imprisoned over unresolved charges for nonviolence crimes. This action indicates the power ICE has on where and how immigrant detainees are being held. “We all hoped that ICE would use its discretion to release,” said Ellen Pachnanda, the attorney in charge of the New York Immigrant Family Unity Project. “As long as ICE retains this discretion to transfer, they will transfer.” Read more at Documented.
Documented is the only newsroom that creates journalism with and for New York’s immigrant communities. This work is not easy and it is not cheap. Help us fuel this work for $10/month.
AOC Revives Citizenship Bill for 9/11 Cleanup Crew
U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.) and two other legislators reintroduced a federal bill to put immigrants who helped clean up after the 9/11 attacks on a fast track to U.S. citizenship. The 9/11 Immigrant Worker Freedom Act is an adjusted version of a bill that former Rep. Joseph Crowley introduced in 2017, which didn’t advance to the House. New York immigrants have asked for years to obtain legal immigrant status as compensation for the work they did and health problems they’ve suffered since the attacks. Several dozens are still protesting, while others gave up on fighting. The Associated Press
New Jersey Haitian Leaders Protest Deportations
Haitian community leaders and immigrant advocates gathered outside of a federal immigration office to protest the Biden administration deporting thousands of Haitian migrants under Title 42. The group of 50 people demanded that President Joe Biden allow more Haitians to seek asylum in the U.S. “These people just want to work and find a better way of life. We’re speaking in Newark because this city is a bedrock for New Jersey’s Haitian population,” said the Rev. Jean Maurice of the New Jersey Haitian Pastors Organization. According to U.S. Census data, New Jersey has roughly 60,000 Haitian residents. North Jersey
Advocates Rally Again for Schumer to Ensure a Pathway to Citizenship
For the last few weeks, immigrant advocates have been demanding Senate Majority Leader Chuck Schumer (D-N.Y.) to work to provide a pathway to citizenship for undocumented immigrants. On Friday, that demand continued at Schumer’s Peekskill office. Immigrants and advocates said they help Democrats gain power in Washington, so now they want Schumer to work for them. “We’ve delivered that control to the Democrats, so we feel that the Democrats have to deliver the promise that they’ve made us and make sure that citizenship is being included in this year’s reconciliation package,” said Peekskill City Councilor Vanessa Agudelo. Advocates said they’re in talks with Schumer’s office and will continue the pressure. News12 the Bronx
ICE Investigation Discovered Falsified Documents of Immigrant’s Suicide
According to Immigration and Customs Enforcement’s External Reviews and Analysis Unit, medical and security staff at Stewart Detention Center in Georgia violated several agency rules when handling Efraín Romero de la Rosa’s suicide in 2018. He was diagnosed with schizophrenia and committed suicide after being in solitary for 21 days. The review discovered staff falsified documents, poorly dealt with his medication, didn’t follow proper care procedures and improperly placed him in disciplinary solitary confinement, even though there were multiple warnings of his declining mental health. The review also lists 22 separate violations of ICE and Stewart Detention Center rules by staff during Romero de la Rosa’s four months in detention and eight separate “areas of concern.” The Intercept
Migrant Caravan Breaks Mexican National Guard Roadblock
Roughly between 3,000 and 4,000 migrants left the U.S.-Mexico border city of Tapachula on Saturday morning and headed to Mexico City. Caravan organizers say that will be their last stop while they continue to attempt to secure humanitarian permits for Haitians andCentral and North American migrants to move freely throughout Mexico. But some migrants said they plan on going to the southern border as part of their push. Videos on social media show the caravan recently ran into a Mexican National Guard roadblock and broke through it, with soldiers making no attempts to pursue or draw weapons against them. Border Report
California Hires Border Wall Contractor to Screen, Test and Vaccinate Migrants
California Gov. Gavin Newsom hired Sullivan Land Services Co. to screen, test and vaccinate migrants for COVID-19 at the border. SLSCO, based in Galveston, Texas, received a no-bid $350 million contract from California. This was the same company former President Donald Trump used to build the border wall along the border. Newsom had criticized the border wall and even pushed to file several lawsuits to halt its construction. According to a report, SLSCO staff gave COVID-19 services to about 60,000 migrants at five locations. Immigration advocates and health care leaders aren’t happy about the state’s partnership with SLSCO. KXAN
Child Allowed into U.S. for Urgent Cancer Treatment and Given Humanitarian Parole
Carlitos, a 2-year-old boy from Guatemala, was allowed to enter the U.S. from Tijuana in an ambulance. According to his attorney Hollie Webb, his story of kidnapping, expulsion, lack of access to medical care and a serious illness that without proper treatment could kill him, provided him with a rare outcome. Attorneys and doctors campaigned U.S. Customs and Border Protection officials to allow Carlitos and his mother, Ana, to cross into San Diego under a humanitarian parole to give him cancer treatment. CBP granted the request after an inquiry from The San Diego Union-Tribune. The two crossed into the U.S. Thursday evening to a hospital in San Diego. The San Diego Union-Tribune
Just like elsewhere in the U.S., Georgia is facing labor shortages as its economy recovers from the pandemic. A bipartisan group of lawmakers has been meeting to figure out how Georgia’s immigrants can help solve this problem and contribute to the state’s economy. They spoke with industry leaders and immigration advocates to learn what prevents immigrants from maximizing their participation in the workforce. According to Darlene Lynch, a representative of Georgia’s Business & Immigration Partnership, about 1 in 5 foreign-born Georgians with college degrees are either unemployed or employed in a low-wage job, which costs the state hundreds of millions of dollars in lost tax revenue per year. The Atlanta Journal-Constitution
Biden Allowing Private Groups to Sponsor Afghan Evacuees, Small USCIS Staff Tackling Humanitarian Requests, Arizona Mayor Claims Migration Stresses Local Services
The Biden administration plans on revealing a program Monday that would let private groups sponsor Afghan evacuees and assist their resettlement in the U.S., three sources familiar with the plan told CBS News. According to a presentation describing the plan, groups of about five individuals could apply to become “sponsor circles” that would help Afghan refugees secure housing, basic necessities, financial support, legal counsel and medical services for about 90 days. This program would become an alternative to the traditional refugee resettlement process, which is overseen by nine national agencies and their local affiliates. The “Sponsor Circle Program,” a joint initiative between the Department of State and the Community Sponsorship Hub, oversees online applications from potential sponsors and helps connect them with refugees. CBS News
U.S. Citizenship and Immigration Services allocated just six employees to process roughly 14,000 humanitarian requests for Afghan evacuees seeking relocation last week, drawing condemnation from lawmakers. “That is completely and utterly unacceptable, and I call on USCIS to address the shortcoming immediately,” said Rep. Jim Langevin, (D-R.I.). As of Friday, that number jumped to close to 20,000 requests, which is 10 times more than the number of humanitarian applications submitted around the world in a typical year, said a USCIS official. In response to Langevin’s criticism, the USCIS official said the agency is assigning additional staff for the workload. VOA News
Yuma, Arizona, Mayor Douglas Nicholls (R) told a Washington, D.C. forum that the increase of undocumented immigrants is stressing health care and nonprofits that assist migrants in his town. “As these (migrant) numbers continue to increase, it’s going to be beyond their capability,” he said. “From that perspective we have real concern about our health care system holding up, our nonprofit system holding up, and even our economy.” His comments come as apprehensions of immigrants at the southern border are at their highest numbers in decades. Immigration advocates say those numbers can be misleading since they might represent one migrant who was stopped multiple times. They also argued that nonprofits were under stress due to the pandemic before immigration numbers increased in Trump’s last year in office. AZMirror
Documented, PO Box 250250, New York, NY 10025, United States
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Recently, I wrote about the heroic efforts of my friends Processor Erin Barbato and the UW Law Immigration Clinic and Professor Stephen Yale-Loehr and the Cornell Law Immigration Clinic to help Afghan refugees, including assistance filing applications for “humanitarian parole.”
I also questioned the unusually high $575 fee being charged by USCIS for these emergency humanitarian applications! Now, we find out that for this outrageously high fee, USCIS has assigned only a “skeletal staff” of six adjudicators to process those very predictable applications.Undoubtedly, that will result in unnecessary backlogs and processing delays.
Ur Mendoza Jaddou Director, USCIS PHOTO: PotomacLaw.com
These are the types of “X’s & O’s” practical problems that USCIS Director Ur Jaddou was hired to fix. So, she needs to “get on the stick” and fix this NOW!
A drastic increase in humanitarian parole applications and backlogs was totally predictable. Why is it only getting attention after it becomes a problem and draws public criticism?
They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs.The gruesome massacre three years ago, considered the worst in Haiti in decades, was more than the work of rival gangs fighting over territory. It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption, the U.S. Treasury Department announced last year.
Since then, Haiti’s gang members have grown so strong that they rule swaths of the country. The most notorious of them, a former police officer named Jimmy Cherizier, known as Barbecue, fashions himself as a political leader, holding news conferences, leading marches and, this week, even parading around as a replacement for the prime minister in the violent capital.
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Read the rest of this gruesome, yet telling, report at the link.
Over 21 years on the Immigration Bench as both a trial and appellate judge, I adjudicated thousands of asylum claims. The circumstances described on this article undoubtedly would give rise to many potentially valid asylum and withholding claims, based on actual or implied political opinion and/or family or gender-based “particular social groups” and Convention Against Torture (“CAT”) grants based on torture with government acquiescence or actual connivance!
So, how do Biden, Harris, Mayorkas, and Garland, who to my knowledge have never represented an asylum applicant or adjudicated an individual asylum case among them, “get away” with simply suspending the rule of law, under false pretenses, for those entitled to seek asylum?
Stephen Miller must be on “Cloud Nine” as Biden & Co. carry out his White Nationalist plans to eradicate asylum, particularly when it protects women and people of color! This is even as Miller and his neo-Nazi cohorts (a/k/a “America First Legal”) are gearing up to sue the Biden Administration to block every measure that might aid immigrants, particularly those of color.
He’s delighted with Biden’s abuse of asylum seekers of color! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
NGOs don’t share the Biden Administration’s vision of what a “safe” Haiti looks like. Neither do kidnapped American missionaries! PHOTO: Marcelo Casal, Jr., Creative Commons License
Angering and alienating your potential allies and supporters to aid the far-right program of your enemies who are determined to do whatever it takes to undermine, discredit, and destroy your Presidency! Obviously, I’m no political expert. But, sure sounds like an incredibly stupid, “designed to fail” strategy to me!
“Mario Rene Lopez Troche (“Lopez Troche”), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We vacate and remand. … [T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified. The BIA cited to three portions of Lopez Troche’s testimony in support of its determination that the IJ did not clearly err in finding an inconsistency between what Lopez Troche told the asylum officer during his reasonable fear interview and how he testified as to the reporting of past abuse. But, none of those passages supports the BIA’s determination. … Nor is it possible to read either the BIA or the IJ to have inferred from Lopez Troche’s failure to report to the police the specific incidents that he discussed in his testimony that he was asserting in that testimony that did not report any incidents of abuse ever. Neither the IJ’s opinion nor the BIA’s expressly purports to premise its ruling as to adverse credibility on the basis of such inferential reasoning, see Chenery, 318 U.S. at 95, and we do not see what basis there would be for drawing that inference on this record, given that, in his reasonable fear interview, declaration, and testimony, Lopez Troche discussed a series of traumatic physical and sexual assaults that he had experienced that appears to have stretched back to a time when he was eight years old and that thus encompassed many more incidents than those addressed specifically in the portions of his testimony on which the BIA focused. As a result, we must vacate and remand the BIA’s order affirming the denial of Lopez Troche’s request for withholding of removal.”
Law students and attorneys of the NDPA are out there helping refugees every day. Meanwhile, over at Garland’s dysfunctional EOIR, Immigration Judges and BIA Appellate Immigration Judges strain to improperly “diddle the record” to deny relief to asylum seekers! Then, OIL defends them!
Essentially, in this case, the BIA “made it up and misrepresented the record” in an effort to deny asylum for specious reasons! Then, OIL tried to “blow it by” the Circuit!
“[T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified.” That’s “judgespeak” for: The BIA invented non-existent “inconsistencies” to unfairly deny asylum. Then, OIL defended that fabrication and denial of due process! What does this say about Garland’s leadership at DOJ?
Whatever happened to legal and judicial ethics? Clearly they were “deep sixed” under Sessions and Barr. But, why is Garland continuing to operate DOJ as an “ethics and quality free zone?”
This is a bad system with the wrong folks in too many judicial and leadership positions and presenting an overwhelming need for robust, bold change in how decisions are made and defended in Circuit Court. So far, Garland has not made the fundamental personnel changes and “quality upgrades” necessary to bring due process and some semblance of expertise and order back to his broken Immigration Courts! Why not?
Why are the kind of individuals who should be Immigration Judges and EOIR judicial leaders, talented lawyers like Elena and Irene, still “on the outside” rather than being actively recruited and brought in to replace those unable to perform judicial, administrative, and litigation duties in a fair, expert manner, that enhances due process? Why is EOIR still operating with a “judiciary” the majority of whom were installed by the Trump regime at Justice to “dehumanize, deport, and deter” without regard for due process? Why is OIL continuing to “defend the indefensible?” Why isn’t Congress asking Garland these questions?
Government lacking in expertise, intellectual honesty, professional ethics, and accountability is “bad government.” That’s true no matter which party holds power!
Hon. David L. Neal Director Executive Office For Immigration Review USDOJ PHOTO: C-SPAN
BREAKING: ABSURDIST “IJ DASHBOARDS” HEADED FOR THE SCRAP HEAP? — New EOIR Director David Neal Reportedly Takes Prompt Action To Eliminate Wasteful, Counterproductive, Stress-Inducing “Big Brotherism” On The Bench!
By Paul Wickham Schmidt
Courtside Exclusive
Oct. 20, 2021
Sources in and outside of EOIR confirm that new EOIR Director “David Neal has ended the dashboard. Supposedly, new IJ quotas are coming, which will be presented as kinder, more humane quotas.”
The “IJ Dashboards,” inextricably tied to due-process-denying “deportation quotas” for Immigration Judges were one of the stupidest, most childish, and transparently counterproductive wastes of taxpayer money by the Trump regime at the DOJ. They were harshly criticized both internally and by outside commentators, including “Courtside.” Their ineffectiveness in reducing backlogs and their adverse effects on already “below basement level” IJ morale are matters of public record!
Shockingly, this wasteful abuse of technology was undertaken at a time when EOIR was continuing its two decade abject failure to implement a badly-needed and long overdue nationwide e-filing system. Who knows how many files and filings are actually floating around EOIR (“lost in space”)? EOIR incompetence means we might never know the full extent of the ongoing backlog disaster! Will David Neal become the first Director in more than two decades to actually solve this problem, rather than just scrambling to conver up failure?
Congratulations to Director Neal for “taking at least one small step for mankind.” We’ll wait to hear what he does to make “IJ quotas” more “kind and gentle.”
The obvious “no brainer” answer is to eliminate them entirely. They could be replaced with realistic, non-mandatory “goals”or “guidelines” for deciding certain types of cases. This might provide helpful guidance for IJs in setting expectations and fairly and professionally handling clogged dockets, rather than ham-handed attempts at coercion and transparent “blame shifting.”
However those guidelines would have to be developed with input from the Immigration Judges themselves, counsel from both the private bar and DHS, and some true judicial experts — perhaps “on loan” from the Administrative Office for U.S. Courts, the Brennan Center, the ABA, and/or the FBA.
Past “goals and timetables” have been the product of political posturing and wishful thinking by those bureaucrats at DOJ and EOIR trying to shift blame and CTA for the failing system under their responsibility. The legitimacy of the process by which any guidelines are established is critical to making them realistic and helpful, rather than just another bureaucratic gimmick untethered to reality as past guidelines have been.
USCIS: Effective Oct. 1, 2021, applicants subject to the immigration medical examination must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record. This guidance applies prospectively to Form I-693 signed by civil surgeons on or after Oct. 1, 2021.
WaPo: Up until Oct. 1, the Postal Service said it should take no more than three days for a piece of first-class mail to be delivered anywhere in the country. After Oct. 1, it will take between two and five days. From Oct. 3 to Dec. 26, the Postal Service is raising prices on some products through a holiday season surcharge. The price hikes are modest for some products (30 cents more for first-class package service), a bit more for others ($1 more for parcel-return service, deliveries from consumers back to retailers), and heftier still for others ($5 more for priority mail, priority express mail, parcel select and retail ground services for items weighing between 21 and 70 pounds).
NBC26: Organized by Voces de la Frontera, this action aims to increase economic and political pressure on President Biden, Vice President Harris and Congressional Democrats to deliver on their promise to pass a path to citizenship in the Build Back Better reconciliation budget bill this year.
Teen Vogue: This excerpt from “Not ‘A Nation of Immigrants’” explains how Italian immigrants used Christopher Columbus to assimilate to American culture and whiteness. For decades, Native Americans and their allies have demanded the end of celebrating Columbus, rightly characterizing him as a mercenary of the Spanish monarchy, an actor in and symbol of the onset of European genocidal colonization of the Indigenous Peoples of the Western Hemisphere.
WaPo: A U.S.-based economist won the Nobel prize in economics Monday for pioneering research that transformed widely held ideas about the labor force, showing how an increase in the minimum wage doesn’t hinder hiring and immigrants do not lower pay for native-born workers.
NYGov: Threats to report a person’s immigration status can currently be treated as a crime in cases of labor trafficking and sex trafficking, but were not previously treated as potential extortion or coercion offenses.
Documented: The courts have been pushing individual hearings forward often too soon for immigrants and attorneys to properly prepare. Individual hearings, particularly for asylum cases, require rigorous preparation both from immigrants, who must recount traumatic details of their lives for a successful case, and attorneys, who must submit dozens of pages of paperwork and work alongside their clients to equip them for the court date.
WaPo: The NBPC does not encourage members to get vaccinated and has said it would like to file a legal challenge to Biden’s mandate that all federal employees be immunized by Nov. 22, but it has not yet found lawyers willing to take the case.
AP: A federal appeals court on Tuesday tossed out California’s ban on privately owned immigration detention facilities, keeping intact a key piece of the world’s largest detention system for immigrants.
Business Insider: During his appearance on Fox News, Trump repeatedly claimed that Haitians trying to enter the US are infected with AIDS… Contrary to his assertions, the prevalence of HIV among Haitian adults aged 15 to 49 is around 1.9%, according to data from the United Nations. While that’s higher than the global rate of 0.7%, reports say Haiti’s HIV prevalence rate has declined significantly in recent decades.
Law360: A U.S. Air Force veteran has another chance to fight his deportation to Trinidad after the Third Circuit found that an immigration appeals board used the wrong legal standard to bar evidence that he may be tortured if deported.
AILA: The court held that, given petitioner’s status as a pro se litigant, her Notice of Appeal was sufficiently specific to inform the BIA of the issues challenged on appeal, and thus the BIA violated her right to due process by summarily dismissing her appeal. (Nolasco-Amaya v. Garland, 9/28/21)
Law360: The Ninth Circuit confirmed that a conviction under a state assault law criminalizing HIV transmission amounts to a federal “crime of violence” for the purposes of deporting a Salvadoran man who shot his friend, saying the key common ingredient is intent.
Law360: A California law banning private immigration detention facilities and other private prisons doesn’t pass legal muster because it would impede the federal government’s immigration enforcement, a split Ninth Circuit ruled Tuesday, undoing a lower court’s decision to keep most of the law in place as litigation proceeds.
AILA: The court granted the plaintiffs’ motion for summary judgment, holding that DOS’s interpretation of several Presidential Proclamations to prevent U.S. consulates and embassies in those countries from adjudicating visas was unlawful. (Kinsley, et al. v. Blinken, et al., 10/5/21)
AILA: The parties reached a settlement to resolve the plaintiffs’ Motion for Award of Attorneys’ Fees and Costs under the Equal Access to Justice Act (EAJA), in which the government agreed to pay $1,150,000 in attorneys’ fees and litigation costs. (Flores, et al. v. Garland, et al., 9/30/21)
CGRS: The Lowenstein Project at Yale Law School submitted today an emergency request for precautionary measures against the United States on behalf of asylum seekers who face grave dangers because the Biden administration continues to illegally block and expel them. The request was submitted under Article 25 of the Rules of Procedure to the Inter-American Commission on Human Rights (IACHR).
Law360: Texas and Louisiana called on the full Fifth Circuit to reinstate a block on the Biden administration’s policy curbing immigration enforcement operations, saying Thursday that the federal government was ducking its obligation to arrest noncitizens convicted of serious crimes.
Law360: A Libyan man formerly employed as a government worker under the Gaddafi regime and his wife have filed suit in Michigan federal court against the federal government and the Chicago asylum processing center, saying five years is too long to wait for an asylum interview.
Law360: An Afghan man who worked with the U.S. government in the Central Asian country told a California federal court that the U.S. Department of State failed to protect his children from the Taliban while their visa applications are processed.
Law360: A bipartisan group of senators announced new legislation this week that would require law enforcement to obtain a warrant before searching Americans’ digital devices at the border.
Law360: The Biden administration asked the Fifth Circuit to shelve its appeal of a lower court order blocking the federal government from approving new applications to the Deferred Action for Childhood Arrivals program while it firms up the details of a replacement rule.
AILA: Office of Refugee Resettlement (ORR) announcement of an inflationary increase to the Refugee Cash Assistance program’s monthly payment ceilings, effective October 1, 2021. (86 FR 54466, 10/1/21)
Call for Examples: The Center for Gender and Refugee Studies (CGRS) is collecting the following information regarding the treatment of asylum and withholding of removal cases following Attorney General Garland’s vacatur of Matter of A-B- I/II, Matter of L-E-A- II, and Matter of A-C-A-A-. To report an outcome in your case and share any sample case documents, please follow the instructions here. To share information regarding OIL’s position in your case, please email the following to CGRS-ABTracking@uchastings.edu. To share information regarding ICE OCC’s position in your case, please complete this survey for each individual case.
Shifting cases around without working with the parties in advance to insure that the new dates are achievable is totally insane! No experienced practitioner or expert would “run the railroad” this way! But, Garland does!
To state the obvious, many attorneys practice in multiple jurisdictions and are already fully or heavily booked. Additionally, my experience was that “move ups” without consultation with both parties, including ICE ACC, often resulted in missing ICE files, unavailable witnesses, unavailable interpreters, or incomplete fingerprint reports which caused additional unnecessary continuances and yet more “ADR.”
“Motions to continue” are not the answer. The system is already backlogged. In an obvious denial of due process, it actually discourages Immigration Judges from granting reasonable continuances in a number of ways, including bogus “case completion quotas” and onerous requirements for justifications for granting continuances. It’s ADR on steroids!
An obvious solution, ignored by Garland and his subordinates:
Return “docket control” to the local Immigration Judges where it has always belonged;
Have Immigration Judges and Court Administrators work cooperatively with the local bar, the ICE OCC, and NGOs, in advance, to come up with rational scheduling procedures that meet everyone’s legitimate needs;
Encourage ICE and the local bar to work cooperatively to identify cases that can potentially be moved up for “short hearings.” Let the parties, who have a strong joint interest in rational dockets, propose the solutions, rather than having politicos impose them from above through clueless agency bureaucrats who are unqualified to “micromanage” dockets!
The real fundamental problem here: Garland is improperly trying to “run” his huge, dysfunctional court system with bureaucrats and politicos who have no recent “real life” experience representing individuals in Immigration Court.
Garland’s inexplicable determination to eschew appointing “progressive practical experts’ with the skills and courage to fix this system has become a (totally unnecessary) national disgrace!
Judge Garland’s gross mismanagement of EOIR is “ratcheting up the pressure” on practitioners in NYC and across the nation!
