14th Amendment – Page 80 – immigrationcourtside.com

“DEVOURING ITS OWN” — U.S. IMMIGRATION JUDGES FIND TRUMP REGIME’S DEHUMANIZATION PROGRAM APPLIES TO THEM TOO — DOJ Overlords Treat Captive Judges’ Lives With Contempt Usually Reserved For Asylum Seekers, Detainees, & Their Attorneys! ☠️⚰️🆘🧫👎🏻😰

https://apple.news/AHVHlXYP_N1SlC2OPsFNIJQ

Kelly Donohue reports for Cronkite News/NPR:

PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.

This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.

The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.

Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.

As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.

Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.

Yet all detained migrants still remain in federal custody.

All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.

The American Immigration Lawyers Association, the Immigration Justice Campaign, the National Immigration Project of the National Lawyers Guild and several detained immigrants filed the complaint on March 30, calling on ICE and the EOIR to indefinitely suspend all in-person immigration court hearings, as well as provide remote communication opportunities and personal protective equipment for legal representatives to wear.

Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.

“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”

The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.

“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.

Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.

Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.

“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”

Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.

“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”

However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.

“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”

The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.

Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.

If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.

Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.

“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”

Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.

Cronkite News

Judges, attorneys call for all immigration courts to close in wake of coronavirus | Cronkite News

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Video by Frankie McLister/Cronkite News

Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.

Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.

As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.

“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.

. . . .

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Read Kelly’s full article at the link.

Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”

Mr. Peanut Devouring His Son
By Nina Matsumoto

PWS

04-07-20

HON. JEFFREY S. CHASE: Matter of R-A-V-P- (Bond Denial) — Maximo Cruelty, Minimal Rationality, Idiotic Timing! — BONUS: My “Monday Mini-Essay:” “ HOW EOIR’S ‘CAPTIVE COURTS’ INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

https://www.jeffreyschase.com/blog/2020/4/6/bia-lock-them-up

Blog Archive Press and Interviews Calendar Contact

BIA: “Lock Them Up!”

In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.

The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.

What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.

In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.

How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.

As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.

The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6

The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.

Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.

Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.

In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.

Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.

My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.

So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.

The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?

As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.

Notes:

Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.

24 I&N Dec. 37 (BIA 2006).

Kansas v. Hendricks, 521 U.S. 346, 356 (1997).

27 I&N Dec. 803 (BIA 2020).

Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.

Matter of Guerra, supra at 40.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

APRIL 6, 2020

NEXT

Like “Firing Randomly Into a Crowd”

Repriented with permission.

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HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!

By Paul Wickham Schmidt

“Courtside” Exclusive

April 6, 2020

Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.

Here’s my earlier, less subtitle, take on this outrageously wrong and unjust precedent by Billy Barr’s wholly-owned subsidiary, the BIA: https://immigrationcourtside.com/2020/04/02/timing-is-everything-during-crisis-bia-makes-time-for-a-little-gratuitous-cruelty-what-could-be-better-during-worldwide-pandemic-humanitarian-disaster-than-an-attempt-to-narrow-the-criteria-for-c/

Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.

A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”

Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.

And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequent willingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!

If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?

Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.

Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent in R-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.

Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.

And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.

That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”

Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA “sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.

Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”

The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.

Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.

Due Process Forever! Captive Courts Never!

PWS

04-07-20

INSPIRING AMERICANS: Christina Fialho & Freedom For Immigrants Fight To End The “New American Gulag!”👍🏼👍🏼👍🏼👍🏼👍🏼😇😇😇😇😇

Lorena García Durán
Director, U.S. Ashoka Support Network

https://apple.news/A-C1bq74iQ4Kil76C8f9hjQ

From Forbes:

The United States operates the largest immigration detention system in the world. More than 50,000 immigrants are detained every day in county jails and for-profit prisons that contract with Immigration & Customs Enforcement (ICE) — at great human cost, and at a cost to taxpayers of $3 billion per year. The current administration has drastically expanded the system, establishing over 20 new detention centers (17,000 more people per day). Christina Fialho, an Ashoka Fellow since 2016 and co-founder of Freedom for Immigrants, is working not only to stop this expansion, but to end immigration detention altogether. Ashoka’s Lorena García Durán caught up with her to learn more.

You co-founded Freedom for Immigrants eight years ago with Christina Mansfield. What was the main goal you set out to achieve?

We want to build a country where no person is imprisoned for crossing a border. Freedom for Immigrants is working to achieve this goal through two main strategies. First, we’ve built a network of 4,500 volunteers that is a consistent watchdog inside this system. We started by building the first visitation program in California. Now volunteers in our network visit people in 69 immigrant prisons in nearly 30 states every week. Second, we launched a community-based alternative to free over 250 people by paying their immigration bonds. Once they are released, we connect them to housing, lawyers, transportation, and mental health services — and we do it all for only $17 per person per day, far less than the government pays to detain people (roughly $165 per person per day).

We are proving that our strategy works. Freedom for Immigrants drafted and co-sponsored the Dignity Not Detention Act — composed of the first statewide bills in the country to stop detention expansion and give the state attorney general oversight powers. These bills passed in California — a state that used to detain a quarter of all people in immigration detention. Since Dignity Not Detention went into effect, seven municipalities ended their ICE contracts. We then worked in a statewide coalition of immigrant rights groups to pass another bill to phase out private prisons in California. Together, we are proving that abolition is possible in the 5th largest economy in the world.

You talk a lot about the importance of creativity and risk taking in the face of obstacles. What are some obstacles you’ve overcome along the way?

Since 2013, we’ve faced “a litany of retaliatory acts by DHS in response to our public advocacy,” as Judge Andre Birotte Jr. explained in his recent court ruling granting us a preliminary injunction against ICE. We’ve had over a dozen of our affiliated visitation programs suspended when we’ve published articles or spoken out in favor of a new system. When we worked with Orange Is The New Black to dramatize the reality of detention, our national hotline was terminated. Private prison companies have muzzled us for reporting sexual assault in detention, and I was personally barred from visiting at certain detention facilities. However, we have successfully moved the work forward through creative persistence, community mobilization, and legal action when necessary.

Speaking of obstacles, ICE just ended all social visitation in response to COVID-19. How is Freedom for Immigrants responding?

If ICE is truly serious about ensuring the health and wellbeing of people in its custody, the agency would release immigrants, beginning with vulnerable populations. Other countries like Spain and Iran are releasing people in response to Covid-19. In fact, Spain’s Interior Ministry has begun a gradual release of people from immigration detention whose deportation cannot be effected before March 29. Freedom for Immigrants has launched an interactive map that tracks ICE response to Covid-19, and we have trained our national hotline volunteers to respond to medical negligence.

. . . .

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

Read the rest of Lorena García Durán‘s interview of Christina Fialho at the above link.

In my experience, there are a few cases where ICE could show on an individualized basis that temporary detention is necessary to protect the public or insure appearance. But, such cases would be the “exception to the rule,” a very small percentage of today’s “New American Gulag” population.

As this article points out, in most cases government grants to enable community placements and legal representation actually would be much cheaper than today’s wasteful funding of the Gulag.

Unlike the Gulag, it also would promote due process, fundamental fairness, best practices, docket efficiency, and most important, maximize the chances of fair results.

Under the Trump regime, the cruel, costly, and counterproductive Gulag has expanded as a means of punishing, coercing, dehumanizing, and deterring those asserting legal rights, particularly the right to apply for asylum and mandatory protections like withholding of removal and protection under the Convention Against Torture (“CAT”).

It also is used by the regime to hinder the statutory and constitutional right to counsel and to promote biased results. Consequently, individuals entitled to relief and protection under our laws are instead railroaded out of the country by judges employed by the regime who have been instructed to disregard migrants’ rights and follow unethical and legally incorrect “precedents” intentionally misconstruing the law to make release from detention unnecessarily difficult and to promote unjust removals.

In other words, a systemic “Due Process Disaster” and a national disgrace.

Thanks to Christina and her team at Freedom for Immigrants for their courageous efforts to stand up to tyranny and defend due process. You certainly are brave front line fighters for the New Due Process Army!

Due Process Forever. The New American Gulag Never!

PWS

04-07-20

AS U.S. DISTRICT JUDGES DITHER, DYSFUNCTIONAL IMMIGRATION COURTS THREATEN NATION’S HEALTH & SAFETY — “I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown!” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻😰😰😰😰😰⚰️⚰️⚰️⚰️⚰️🦠🦠🦠🦠🦠🧫🧫🧫🧫🧫🆘🆘🆘🆘🆘🆘

https://apple.news/AiFcpYTPESciTT51hvpMdOQ

Liz Robbins reports for The Appeal:

One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.

Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open.

The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger.

“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”

Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said.

In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders.

“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”

Lawyers, judges, and advocates wonder: What will it take for EOIR to close courts nationally?

“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.

. . . .

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

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

Looks like the dead bodies will have to pile up before the Article IIIs and EOIR will take action. As the rest of us know, but to which U.S District Judges & EOIR appear willfully blind, by the time individuals show symptoms and begin dying, it’s too late to stop the spread. The larger community has already been infected.

I wonder what it is that gives both EOIR officials and Article III Judges such great confidence that they and their families will escape the consequences of their irresponsible behavior? Maybe, it’s that both EOIR Senior Execs and Article III Judges manage to studiously avoid “direct exposure” to Immigration Courts. “Below their pay grade,” so to speak.

But, according to folks like Dr. Fauci, who possibly knows even more about infectious diseases than EOIR Director McHenry and the Federal Judges who continue to defer to the irresponsible EOIR “guidance,” nobody will be immune.

So far, the U.S. has done the worst job of any developed country in the world of “flattening the curve.” Inevitably, we eventually will become the “world leader” in coronavirus deaths. After observing the inept response of EOIR and the failure of the U.S. District Courts to promptly intervene on the side of medical knowledge, common sense, and preserving human lives, I can now see why we are failing as a nation to take the extreme measures necessary for self-preservation.

I would think that as lawyers, judges, and other members of the legal community start dying as a result of EOIR’s policies, that the officials responsible eventually will face legal actions brought by surviving family members and colleagues. Life tenure and the judicial doctrine of “absolute immunity” will protect the feckless Federal Judges from legal accountability. But, it won’t protect them and their reputations from moral accountability and the “judgements of history” which are likely to be harsh and as unforgiving as the Trump Immigration Kakistocracy’s treatment of the most vulnerable among us and their brave lawyers.

Due Process Forever! Trump’s Immigration Kakistocracy & Feckless Federal Courts, Never!

PWS

04-04-20

DARA LIND @ PRO PUBLICA: Trump & His White Nationalists Always Hated Asylum Laws — Now With CBP’s Help, They Have Simply Decided To Repeal Them By Memo — No Real Pushback From Broken Legal System & Feckless Congress!

https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law

Dara writes in Pro Publica:

Citing little-known power given to the CDC to ban entry of people who might spread disease and ignoring the Refugee Act of 1980, an internal memo has ordered Border Patrol agents to push the overwhelming majority of migrants back into Mexico.

For the first time since the enactment of the Refugee Act in 1980, people who come to the U.S. saying they fear persecution in their home countries are being turned away by Border Patrol agents with no chance to make a legal case for asylum.

The shift, confirmed in internal Border Patrol guidance obtained by ProPublica, is the upshot of the Trump administration’s hasty emergency action to largely shut down the U.S.-Mexico border over coronavirus fears. It’s the biggest step the administration has taken to limit humanitarian protection for people entering the U.S. without papers.

The Trump administration has created numerous obstacles over recent years for migrants to claim asylum and stay in the United States. But it had not — until now — allowed Border Patrol agents to simply expel migrants with no process whatsoever for hearing their claims.

The administration gave the Border Patrol unchallengeable authority over migrants seeking asylum by invoking a little-known power given to the Centers for Disease Control and Prevention, the U.S. public health agency, to ban the entry of people or things that might spread “infectious disease” in the U.S. The CDC on March 20 barred entry of people without proper documentation, on the logic that they could be unexamined carriers of the disease and out of concern about the effects if the novel coronavirus swept through Customs and Border Protection holding facilities.

U.S. immigration law requires the government to allow people expressing a “well-founded” fear of persecution or torture to be allowed to pursue legal status in the United States. The law also requires the government to grant status to anyone who shows they likely face persecution if returned to their homeland.

“The Trump administration’s new rule and CDC order do not trump U.S. laws passed by Congress and U.S. legal obligations under refugee and human rights treaties,” Eleanor Acer, of the legal advocacy group Human Rights First, told ProPublica. “But the Trump administration is wielding them as the ultimate tool to shut the border to people seeking refuge.”

Two weeks ago, the Trump administration hastily put in place a policy, which the internal guidance calls Operation Capio, to push the overwhelming majority of unauthorized migrants into Mexico within hours of their apprehension in the U.S.

The Trump administration has been publicly vague on what happens under the new policy to migrants expressing a fear of persecution or torture, the grounds for asylum. But the guidance provided to Border Patrol agents makes clear that asylum-seekers are being turned away unless they can persuade both a Border Patrol agent — as well as a higher-ranking Border Patrol official — that they will be tortured if sent home. There is no exception for those who seek protection on the basis of their identities, such as race or religion.

Over 7,000 people have been expelled to Mexico under the order, according to sources briefed by Customs and Border Protection officials.

The guidance, shared with ProPublica by a source within the Border Patrol, instructs agents that any migrant caught entering without documentation must be processed for “expulsion,” citing the CDC order. When possible, migrants are to be driven to the nearest official border crossing and “expelled” into Mexico or Canada. (The Mexican government has agreed to allow the U.S. to push back not only Mexican migrants, but also those from Guatemala, Honduras and El Salvador; the four countries account for about 85% of all unauthorized border crossings.)

Under the Refugee Convention, which the U.S. signed onto in 1968, countries are barred from sending someone back to a country in which they could be persecuted based on their identity (specifically, their race, nationality, religion, political opinion or membership in a “particular social group”).

The Trump administration has taken several steps to restrict the ability of migrants to seek asylum, a form of legal status that allows someone to eventually become a permanent U.S. resident. Until now, however, it has acknowledged that U.S. and international law prevents the U.S. from sending people back to a place where they will be harmed. And it has still allowed people who claim a fear of persecution to seek a less permanent form of legal status in the U.S. (In the last two weeks of February, 2,915 people were screened for humanitarian protection, according to the most recent statistics provided by U.S. Citizenship and Immigration Services.)

The Border Patrol guidance provided to ProPublica shows that the U.S. is acting as if that obligation no longer applies.

Customs and Border Protection, the agency that oversees the Border Patrol, said it would not comment on the document provided to ProPublica. Asked whether any guidance had been provided regarding people who expressed a fear of persecution of torture, an agency spokesperson said in a statement, “The order does not apply where a CBP officer determines, based on consideration of significant law enforcement, officer and public safety, humanitarian, or public health interests, that the order should not be applied to a particular person.”

That language does not appear in the guidance ProPublica received. Instead, it specifies that any exception must be approved by the chief patrol agent of a given Border Patrol sector. One former senior CBP official, who reviewed the guidance at ProPublica’s request, said that because there are so many levels of hierarchy between a chief patrol agent and a line agent, agents would be unlikely to ask for an exemption to be made.

. . . .

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

Read the rest of the article at the link.

Shows how fragile our legal system and our democratic institutions are. Contrary to “popular liberal myth” they have not “been holding up well” in the age of Trump. A GOP Senate, of course, deserves much of the blame. But, it’s not like the Democrats have exactly put protecting the rule of law and Constitutional Due Process for the most vulnerable among us at the forefront.

We can also trace the disintegration of the legal system under Trump directly to the the failure of Roberts and the GOP majority on the Supremes to stand up for separation of powers, racial and religious justice, and Executive accountability. By ignoring a very clear record of invidious racial, religious, and political bias behind Trump’s Executive actions, and allowing a transparently contrived “national security” rationale to be used, in the so-called “Travel Ban Case” the Supremes’ majority basically signaled they had no intention of halting a White Nationalist assault on our Constitution and the rights of vulnerable minorities, particularly migrants. In other words, Roberts & Co. said: “It’s OK to ‘Dred Scottify’ away, we’ll never stand in your way.” And, true to their word, the “J.R. Five” have been more than happy to ignore the law and “green light” the White Nationalist nativist immigration agenda.

So, four decades of painstakingly hard cooperative work by “good government” advocates, NGOs, the private sector, and the international community to reach an imperfect, yet basically workable, consensus that saved countless lives and helped fuel our economic success, the Refugee Act of 1980 lies in tatters. Decades of progress destroyed in a little over three years. That’s “institutional failure” on a massive scale!

Don’t look for the Refugee Act or the rule of law to be resurrected any time soon. Under Trump and his would-be authoritarian kakistocracy, the “emergencies,” real and fabricated, will never end until democracy and human decency are dead and buried. And, don’t count on Mitch McConnell or John Roberts to stand in the way.

This is exactly how democracies die. But, we do have the remaining power to remove the kakistocracy at all levels of our government and start rebuilding America. Yes, Roberts and his gang have life tenure. But, with “regime change,” we can start appointing better judges who will aggressively push back against the far-right, anti-democracy judicial agenda! Folks who believe in Due Process, fundamental fairness, the rule of law, racial equality, human decency, and equal justice for all! Vote to save our nation in November!

Due Process Forever!

PWS

04-03-20

SET OUR CHILDREN FREE! — AMERICA OFFICIALLY ABUSES CHILDREN IN THE TIME OF PLAGUE — Lee Sunday Evans & Waterwell With A 90-Second Video Using The Words Of The Abused!

Dearest Flores Readers –

I hope this finds you and your loved ones as safe and comfortable as possible right now.

We created a 90-second video – its a series of excerpts about the lack of access to healthcare in immigration detention facilities as a way to highlight how dangerous it is for anyone to be in detention during COVID-19.

Can you post or share this video on social media?

It will have a great impact – it will help engage more people in the movement to get people out of detention.

All info about how to post is below.

I’ve also included a few relevant news stories in case you’re interested in more context. And, there is information about one direct action you can take if you are interested.

Feel free to be in touch if you have any questions.

(AND – if you are also working on this issue and have other ideas about how this video, or the project, can be most effective at this time, we are all ears, our digital doors are open.)

With love,

Lee

SHARE / REPOST

The video is posted to our social media channels:

Twitter

Instagram

Facebook

or DOWNLOAD the video directly:

https://vimeo.com/403007841 / password: criterion

(*choose the 4K file)

CAPTION – use ours or write your own:

These first-hand stories from June 2019 can help us understand why it’s so urgent to get people out of detention during the COVID-19 Pandemic.

COPY These Hashtags

#FreeThemAll #FreeThemAllGov #HealthNotPunishment #floresexhibits

(This is the most direct way to connect your message and your followers to the movement among advocates and policy makers.)

ACTION – if you want to take an action today, this is from RAICES Texas:

> Call the San Antonio ICE Field Office at (210) 283-4712

> “Hi, my name is _____ and I am calling to demand the release of all immigrant detainees from the Residential Centers at Karnes and Pearsall due to the imminent threat of COVID-19. If you don’t, we are all at risk.”

NEWS

Judge orders release of 10 detained immigrants from NJ jails

Judge Gee orders gov’t to “rmake continued efforts” to release migrant children

Judge declines to release families in detention in TX + NJ

Detained Immigrants File a Lawsuit

FOLLOW these incredible advocacy organizations to stay informed about the issues and amplify important actions they are instigating:

Detention Watch Network (@DetentionWatch)

Raices (@RAICESACTION @RAICESTEXAS)

Southern Border Community Coalition (@SBCCoalition)

New Sanctuary Coalition (@NewSanctuaryNYC)

ACLU – Border Rights (@ACLU_BRC)

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

Join the New Due Process Army and fight to end official child abuse and Article III judicial complicity!

What kind of society allows its government to abuse children? Whatever happened to accountability? How about ethics and common sense for Article III Judges who could end the abuse, but haven’t? How would you feel if your children were treated this way by the authorities? There is a reprehensible “double standard” at work here!

Due Process Forever! Child Abuse Never!

PWS

04-02-20

UPDATE: While folks like McHenry and the operators of the DHS Gulag provide misleading information, or perhaps outright lies, to Federal Judges, Courtside’s sources say that at least six individuals with some connection to the Immigration Courts have died from coronavirus. While I admittedly have no way of “independently verifying” this information, I’d bet that there are many more Immigration Court or Gulag-related coronavirus deaths and serious infections out there that I do not know about!

Why, I wonder, would any Federal Judge accept the word of someone like McHenry or officials in the DHS Gulag over affidavits from detainees, filings from experts, and the advice we hear from the Surgeon General, Dr, Fauci, and Dr. Birx every day? Stay home means “stay home!”

Nobody with any understanding of our immigration system could reasonably believe that running one more removal hearing or keeping non-criminals in prison is worth endangering lives and spreading disease! What in the recent public history of DHS Detention and EOIR would lead a Federal Judge to credit any information on “best practices” on public health provided by these inherently unreliable and incompetent organizations?

PWS

04-02-20

EVERY U.S. CONGRESSPERSON, SENATOR, & ARTICLE III JUDGE INCLUDING ALL THE JUSTICES OF THE U.S SUPREME COURT SHOULD BE REQUIRED TO WATCH THIS 4-MINUTE VIDEO SHOWING WHY TODAY’S “CAPTIVE” U.S. IMMIGRATION “COURT” IS A FESTERING, POTENTIALLY MORTAL WOUND TO OUR CONSTITUTION & OUR HUMANITY – Starring The U.S. Constitution & Judge A. Ashley Tabaddor, President, National Association of Immigration Judges (“NAIJ”)

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

The video at this link kindly furnished by the always amazing Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-immigration-courts-nothing-like-what-you-have-imagined-video

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

How totally screwed up, unconstitutional, and unethical is this current system under the Department of Justice (“DOJ”)?

As “punishment” for consistently speaking out for Constitutional Due Process and for the rights of EOIR employees to do their jobs safely, professionally, and free from political interference and pressure, the DOJ is seeking, on patently frivolous grounds previously rejected by the Federal Labor Relations Authority, to “decertify” the NAIJ to prevent Judge Tabaddor and other NAIJ officers from “speaking truth to power” and “blowing the whistle” on the mockery of justice unfolding daily in Immigration Courts across the country. We can’t let them get away with this outrageous and unlawful behavior.

Join the New Due Process Army (“NDPA”) today, and fight to make Due Process under law a reality for all persons in the United States!

Due Process Forever! Captive Courts, Never! We Need Article I!

PWS

04-02-20

WASHPOST: TENS OF THOUSANDS OF DACA RECIPIENTS SERVE ON THE FRONT LINES OF OUR PANDEMIC RESPONSE — Trump & His Supremes Add Insult To Injury! — America’s New “Dred Scottifyers”

From the WashPost Editorial Board:

https://www.washingtonpost.com/opinions/thousands-of-health-care-workers-are-at-risk-of-being-deported-trump-could-save-them/2020/03/30/834b533a-72ae-11ea-87da-77a8136c1a6d_story.html

BEFORE DAWN on Saturday morning, Aldo Martinez, a paramedic in Fort Myers, Fla., responded with his ambulance crew to a man who, having just been diagnosed with covid-19, was having a panic attack. The man didn’t know that Mr. Martinez, 26 years old, is an undocumented immigrant; nor that he is a “dreamer”; nor that his temporary work permit under an Obama-era program has been targeted by President Trump.

The covid-19 patient was not aware that Mr. Martinez’s ability to remain in the United States, as he has since his parents brought him here from Mexico at age 12, now hangs in the balance as the Supreme Court weighs the future of Deferred Action for Childhood Arrivals, the program known as DACA. What the man did know was that Mr. Martinez, calm and competent, spent 45 minutes helping to soothe him, explaining the risks and symptoms and how to manage them.

[[Full coverage of the coronavirus pandemic]]

Some 27,000 dreamers are health-care workers; some, like Mr. Martinez, are on the front lines, grappling with a deadly pandemic. They are doctors, nurses, intensive care unit staff and EMTs trained to respond quickly to accidents, traumas and an array of other urgent medical needs.

Until now, because of DACA, they have been shielded from deportation and allowed to work legally. Their time may be running out.

The Supreme Court heard oral arguments in the fall on the Trump administration’s attempt to rescind the program; it is expected to rule in the coming months. If, as appears likely, the court’s conservative majority sides with the administration, Mr. Martinez and thousands of other health-care workers would lose their work permits and jobs, and face the threat of deportation. So would another 700,000 DACA recipients — food prep workers, teachers and tutors, government employees, and students, including those enrolled in medical programs.

That would be catastrophic, and not just for the dreamers themselves, young people in their 20s and 30s who have grown up here. It would also be catastrophic for the United States.

Mr. Trump could halt the threat to dreamers with the stroke of a pen, by issuing an executive order. He has referred to DACA recipients as “some absolutely incredible kids” and promised that they “shouldn’t be very worried” owing to his “big heart.” But, so far, he has taken every possible step to chase them out, and his administration has made clear that if it prevails in the Supreme Court, dreamers will be subject to deportation.

That would give Mr. Martinez about four months. His current DACA status expires Aug. 5, and it would probably not be renewable if the administration prevails.

[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]

“I don’t want people thanking me because I expose myself to covid — I’m not here for the glamour of it,” Mr. Martinez told us. “The principle is when people are having an emergency, they don’t have safety or security — you’re there to provide that for them in a time of need.”

Now it’s a time of need for Mr. Martinez himself, and hundreds of thousands of other dreamers like him. The country needs them as never before. Will Mr. Trump step up to provide them with safety and security?

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

Let’s be clear about responsibility for this unconscionable self-inflicted looming disaster. There was an exceptionally well-justified nationwide injunction in effect against the Trump regime’s lawless attempt to terminate DACA, no “Circuit split,” and absolutely no emergency reason for the Supremes to take the DACA case. None, unless they were going to summarily affirm the lower court injunction. Yet, they went out of their way to intervene in an apparent effort by the “J.R. Five” to advance the regime’s gratuitously cruel and wasteful White Nationalist, racially motivated immigration and anti-human rights agenda.

At oral argument, although acknowledging the sympathetic circumstances, the GOP Justices showed little genuine concern for the human and legal consequences facing the “Dreamers” if the “J.R. Five,” as most expect them to do, “pull the plug” on these kids. Things like the consequences of loss of work authorization or permission to study and having to live your life in constant fear of arrest and removal seemed to go over the heads of the intentionally tone-deaf and condescending GOP majority.

At oral argument, Justice Sonia Sotomayor said it very clearly: “This is not about the law,” she said. “This is about our choice to destroy lives.” https://www.nytimes.com/2019/11/12/us/supreme-court-dreamers.html?referringSource=articleShare. Her GOP colleagues, not for the first or last time, appeared anxious to tune out “the truth she spoke” and instead to please the regime’s overlords by unleashing the cruelty and wanton destruction of humanity.

Ever since their horrible “cop out” in the so-called “Travel Ban cases,” J.R. and his GOP buddies have been enabling a toxically unconstitutional invidiously motivated attack on the due process rights and human dignity of some of America’s most vulnerable “persons.” Often, they bend the normal rules applicable to everyone else “on demand” from “Trump uber-toady” Solicitor General Noel Francisco. They have played a disgraceful and cowardly role in the regime’s, largely successful to date, efforts to “Dred Scottify” and dehumanize the most vulnerable among us.

As Mark Joseph Stern very cogently said in Slate:

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Life tenure makes these guys effectively unaccountable for their immoral and illegal actions. But, history will not forget where they stood in the face of bigotry, racism, cruelty, and tyranny.

A great democracy deserves and needs better from its life-tenured judiciary. Much better! The necessary shift from kakistocracy to democracy will require “regime change” in both the Executive and the Senate. November must be the starting place if we wish to survive as a democratic republic!

Due Process Forever! Complicit Courts Never!

PWS

03-31-20

GULAG WATCH: DC FEDERAL JUDGE ORDERS DHS TO DO BETTER ON DETAINED FAMILIES: “I will order that in a week [April 6], the government has got to come back to me and give me answers about the capacity of these centers, videotapes of living conditions and steps taken toward release.”

Spencer S. Hsu
Investigative Reporter
Washington Post

https://www.washingtonpost.com/local/legal-issues/us-judge-widens-order-urging-ice-release-of-migrant-families-with-young-children-in-coronavirus-outbreak/2020/03/30/8226ed06-7296-11ea-85cb-8670579b863d_story.html

Spencer Hsu reports for WashPost:

A federal judge in Washington pressed U.S. Immigration and Customs Enforcement to release migrants held in family detention centers, citing the imminent risk of coronavirus outbreaks in confinement and their rapid spread to surrounding communities.

U.S. District Judge James E. Boasberg of Washington, D.C., stopped short of ordering the immediate release of about 1,350 members of migrant families detained at three centers in Pennsylvania and Texas as part of a lawsuit advocates recently filed. But during a hearing on Monday, the judge directed U.S. immigration authorities to report on their efforts to release families in custody by next week.

“I will order that in a week [April 6], the government has got to come back to me and give me answers about the capacity of these centers, videotapes of living conditions and steps taken toward release,” Boasberg said after a 45-minute hearing.

“Circumstances are changing rapidly, and if there are cases in these centers or there are other problems that are not compliant, I will revisit” the petitioners emergency release request, the judge added.

Boasberg’s order expands on a similar one U.S. District Judge Dolly M. Gee issued Saturday in Los Angeles related to an emergency hearing seeking the release of 6,900 detained children. Gee had ordered that federal agencies operating detention facilities for migrant children report their efforts to release children in custody by April 6. Boasberg widened the order to cover their parents.

[[Coronavirus could pose serious concern in ICE jails, immigration courts]]

Boasberg also directed U.S. immigration authorities to comply with Centers for Disease Control and Prevention guidelines for congregate housing and the Constitution’s guarantee that prisoners be held in safe and sanitary conditions.

[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]

Boasberg entered his order in a lawsuit filed March 21 by three groups helping migrant families seeking asylum and being held at three centers in Berks County, Pa.; Dilley, Tex.; and Karnes City, Tex., under the Trump administration’s family detention policy.

Lawyers for the Refugee and Immigrant Center for Education and Legal Services, the Rapid Defense Network, and ALDEA — the People’s Justice Center argued that their clients are “trapped and at risk of serious, irreparable harm” in situations they called “a tinderbox.”

The suit alleged that groups of about 60, 500 and 800 detained mothers, fathers and children live, eat and sleep in close quarters at the three facilities and cannot meet hygiene and “social distancing” standards recommended to prevent the spread of the virus.

The complaint asserts that up to 100 people sit “elbow to elbow” in lunchrooms at tables of 10; soap is limited; access to hand sanitizer is limited or nonexistent; and cleaning of centers is typically done by volunteer detainees who are paid $1 a day and not provided hand sanitizer or masks.

“Families in [detention centers] are scared and concerned for their lives,” the complaint alleged. “It is almost certain to expect COVID-19 to infect and spread rapidly in family residential centers, especially when people cannot engage in proper hygiene or isolate themselves from infected or asymptomatic residents or staff.”

The suit said authorities have begun to release some families that include pregnant women or people with asthma from the Karnes and Dilley facilities.

. . . .

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

Read the complete story at the link.

It’s clear that DHS has neither the desire nor the ability to comply with CDC guidelines. Delay could be deadly. Indeed, that Judge Boasberg had to order the DHS to do what it should be doing anyway and what it has falsely claimed it was doing actually demonstrates why the whole system should long ago have been removed from the regime’s control

The good news is that in this case the regime’s immigration kakistocracy is finally getting some much-needed “adult supervision” from Judge Boasberg. Let’s hope he can save some lives from a system designed and operated to demean, dehumanize, and endanger as part of an unconstitutional “deterrence” strategy.

But, at some point, both our society and our justice system will have to stop the ongoing “willful blindness” and deal directly with the unconstitutionality, intentional cruelty, immorality, and wastefulness of falsely classifying gratuitous “cruel and unusual punishment” of families and children seeking asylum as “civil detention.” It’s no such thing; it must be outlawed and abolished except in the extremely limited circumstances where it is actually required to protect the public or insure appearance.

And, under our Constitution, it should never be imposed without an individualized order from an independent Federal Judge. Today’s “New American Gulag” is an unconstitutional national disgrace which has been “weaponized,” with disturbingly little actual supervision by the Article III Judiciary, by a regime interested only in furthering a White Nationalist agenda of gratuitous cruelty and oppression of “the other” (primarily, other humans of color)!

PWS

03-31-20

IS NEW DHS POLICY GOING TO BE A “DUD” (“DETAIN UNTIL DEAD”) — That’s Exactly What Detained Migrants Fear — With Good Reason!

https://apple.news/AKjNHqjWgSQ2DwWNGARK5pQ

Emily Green reports for Vice News

Immigrants Jailed by ICE Are Sick, Panicking, and Can’t Get Coronavirus Tests

“They don’t want to die in here.“

José listed off his symptoms: fever, nausea, diarrhea, difficulty breathing. The 38-year-old from Mexico, now detained in an ICE detention center in Southern California, told VICE News he worries he has COVID-19, the potentially deadly disease caused by the novel coronavirus.

But he doesn’t know. His jailers won’t test him.

Instead, José, who is from Mexico and came to the U.S. when he was 15, sleeps in a cell with seven other detained immigrants at the Adelanto detention facility in San Bernardino, Calif, which is run by the for-profit GEO Group. He wakes up in the middle of the night gasping for air, his heart beating wildly. After complaining to a judge, he was taken to the infirmary, where a doctor told him it was just a cold, he said.

“They just tell me to drink a lot of water and eat the food they give us,” said José, who has been incarcerated for five years fighting a deportation order. “There are other guys in here that are also coughing, have a fever. But we have no idea if we have the coronavirus because they won’t give us a test.”

This week, the first immigrants detained by ICE tested positive for COVID-19. It comes after weeks of warnings by public health experts and civil right lawyers that a mass outbreak in detention centers is inevitable, endangering both asylum seekers, those being detained for immigration violations, and staff. They also say an outbreak would strain an already critically low supply of respirators, leading to more deaths in the communities surrounding detention centers as well as among immigrant detainees.

Across the immigration system there appears to be little being done to prevent a spread of the coronavirus, except banning visitors. There are currently some 37,000 detained immigrants in ICE custody, most of them held in for-profit detention centers in the south and California. ICE recently requested 45,000 N95 masks from the federal government for its officers to carry out detentions of undocumented immigrants.

VICE News spoke with six men currently being held in ICE detention facilities in California, and two men released this month from ICE facilities in Louisiana. They described congested living conditions with up to 110 men sleeping in a room and days-long waitlists to be seen by a medical professional.

. . . .

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

Read Emily’s account of how our society is treating our fellow human beings at the link.

As I just quoted in a previous post:

“A country is not only what it does…it is also what it tolerates.”

Kurt Tucholsky

PWS

03-29-20

THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

She was a Leader of the NDPA before there was an NDPA! Now Michelle Mendez and her CLINIC Team are giving you “the skinny” on how to combat EOIR’s “Raging War on Due Process!”

Friends,

Wanted to share with you two new CLINIC resources:

Practice Pointer: Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)

FOIA Disclosures on In Absentia Removal Numbers Based on Legal Representation

An immigration judge may issue an in absentia removal order if the Department of Homeland Security, or DHS, establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing. As documented in the report Denied a Day in Court: The Government’s Use of in absentia Removal Orders Against Families Seeking Asylum, CLINIC learned about these reasons firsthand while representing 46 families released from detention and successfully challenging their in absentia removal orders. Perhaps the main factor for failing to appear at scheduled hearings in immigration court is the presence or absence of legal counsel to orient the respondent through the layers of government bureaucracy and the complex immigration system.

On November 18, 2019, CLINIC submitted a Freedom of Information Act, or FOIA, request to the Executive Office for Immigration Review, or EOIR, seeking data on the number of in absentia removal orders issued based on legal representation status. CLINIC requested three sets of in absentia order data: the total number of in absentia removal orders issued since 2008, the number of in absentia orders issued to Unaccompanied Children, or UACs, since 2008, and the number of in absentia orders issued to families classified by EOIR as “Family Unit,” FAMU, cases since November 16, 2018. On March 13, 2020, EOIR responded with a three-tab Excel spreadsheet of raw in absentia removal order data. CLINIC has calculated the in absentia removal order raw data into percentages.

Here are some key takeaways from the data:

Although, according to EOIR statistics, the current overall representation rate is 65 percent for all pending cases, those who are unable to secure representation are at extraordinary risk of receiving in absentia removal orders. 92.6 percent of those with in absentia orders issued in fiscal year, or FY, 2020 were unrepresented.

Although, according to EOIR statistics, the current overall representation rate is 68 percent for all UAC pending cases, UACs who are unable to secure representation are also at extreme risk of receiving in absentia removal orders. 88 percent of those with in absentia orders issued in fiscal year FY2020 were unrepresented.

Since 2008, the percentage of unrepresented respondents with in absentia removal orders has been at least double that of in absentia orders of removal issued to represented respondents.

Since 2008, at least 70.8 percent of UACs who were issued in absentia orders of removal were unrepresented and, so far this fiscal year, the unrepresented rate for UACs who received in absentia orders of removal has been the highest ever, at 88 percent.

The number of in absentia removal orders issued by EOIR to unrepresented respondents in FY2020 surpassed the total number of in absentia orders issued to unrepresented respondents in FY2019 in just the first five and a half months of FY2020.

EOIR has issued more in absentia removal orders in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia removal orders from FY2008 through FY2016 were 246,893. Total in absentia removal orders from FY2017 through FY2020 (through March 13, 2020), were 267,696

EOIR has issued more in absentia removal orders to UACs in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.

Total in absentia orders of removal issued to UACs from FY2008 through FY2016 were 20,123. Total in absentia removal orders issued to UACs from FY2017 through FY2020 (through March 13, 2020), were 26,228.

During the date range covered by the data (FY2008 through FY2020 Q2), immigration judges issued the fewest number of in absentia removal orders in FY2012, the year that DHS announced DACA. During FY2012, DHS officially launched the prosecutorial discretion program in November 2011 and reviewed many pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion.

Most immigration courts saw a decrease in in absentia orders of removal for unrepresented noncitizens in FY2012 compared to FY2011.

Unrepresented UACs suffered a huge jump of in absentia removal orders from FY2014 (1,701) to FY2015 (5,836). This hike in in absentias for UACs occurred concurrently with the increase in UACs fleeing El Salvador, Guatemala and Honduras, and arriving in neighboring countries and at the U.S.-Mexico border.

89.6 percent of all family units who received an in absentia removal orders from November 16, 2018 to September 30, 2019, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in unrepresented FAMU cases during this period: 4,108 (which translates into 93.8 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Miami Immigration Court issued the second most in absentia removal orders in unrepresented FAMU cases during this period: 3,347 (which translates into 89.5 percent of the total in absentia removal orders issued by this court).

94.2 percent of all family units who received in absentia removal orders from October 1, 2019 to March 13, 2020, were unrepresented.

Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,931 (which translates into 95.62 percent of the total in absentia removal orders issued by this court).

Of all the immigration courts, the Atlanta Immigration Court issued the second most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,662 (which translates into 98.27 percent of the total in absentia removal orders issued by this court).

Oddly, several immigration courts that oversee only detained dockets, including the Elizabeth Detention Center, recorded in absentia removal orders during the FOIA time period.

In FY2020, immigration judges have issued more in absentia removal orders than any prior year since 2008, and we are only five and a half months into the federal fiscal year.

Of all the immigration courts, the Harlingen Immigration Court has recorded the most unrepresented in absentia removal orders overall in FY2020 so far: 8,357.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders overall in FY2020: 753.

Of all the immigration courts, the Miami Immigration Court has recorded the most unrepresented in absentia removal orders for UACs in FY2020: 430.

Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders for UACs in FY2020: 73.

Thanks for helping us share these!

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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.

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

Now, it’s hardly “news” that there is a strong positive correlation between legal representation and appearance in Immigration Court. That information came to light way back in the Obama Administration and has consistently been reinforced by data that contradicts the lies about failures to appear put out on a regular basis by regime officials.

Given the clear correlation, the best way to make a fair due process system function would be if the Government worked hand in hand with NGOs, charitable organizations, local bar associations, and others involved in providing pro bono representation to insure that at least all asylum applicants and children are represented before the Immigration Courts. Due Process and fundamental fairness would be served and the in absentia rate would crater. In other words, due process with efficiency, an achievable “win-win!”

Instead, the Trump regime, through both EOIR and DHS, has made a concerted attack on the right to counsel in a transparent attempt to increase the number of in absentia orders and “speed up the deportation railroad” that EOIR now runs as its “one and only mission.”

How does something masquerading as a “court” system conduct a “deportation railway?” It takes lots of complicity and supposedly responsible public officials and citizens intentionally “looking the other way” and studiously ignoring the obvious!

I hope that advocates will be able to use the data provided by CLINIC to expose to the Article III Courts and Congress the rampant fraud, waste, abuse, and just plain “malicious incompetence” of EOIR and DHS (is there really a difference these days? Not apparent to most of us who follow the “Star Chambers” with regularity.).

Remember, moral cowardice and intellectual dishonesty often begin with picking on the most vulnerable and defenseless among us. And what follows is likely to be unspeakably bad, based on history!

Thanks, Michelle, my friend, for all you and CLINIC do.

Due Process Forever!

PWS

03-29-20

TWILIGHT ZONE: ABSURDITY, CRUELTY, INJUSTICE ARE THE ORDERS OF THE DAY IN “AMERICA’S STAR CHAMBERS” (A/K/A IMMIGRATION “COURTS’) — Podcaster Sam Graber Takes You Inside The Mind Numbing Reality Of A “Third-World Court System” Operating Right Under Our Noses!

Listen to Sam on “American Refugee” here:

LISTEN on the Web – https://odaction.com/americanrefugee-ep03/
LISTEN on Apple devices (Apple Podcasts) – https://pcr.apple.com/id1494027429
LISTEN on Android devices (Spotify) – https://spoti.fi/30r4Efi

In the days leading up to the coronavirus shutdown I journeyed into a shadow part of our justice system, a courtroom rarely seen by the public.

Detained immigration court is a place where lawyers aren’t provided for the defense, where judges and prosecutors are on the same team, where guilty is presumed and the all-too-often verdict a different kind of death.

Who are these immigration judges? What exactly is detained court? And how is it able to get away with operating outside of what we might call normal law?

Get ready because you’re about to go there, to see the injustice that isn’t being shut down.

This is American Refugee.

Written, Engineered & Produced: Sam Graber
Music: Rare Medium, Punk Funk Metropolis, New Sound Underground
Recorded: Minneapolis, MN
Original Release: March 2020

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Disturbing and infuriating as Sam’s podcast is, I urge everyone to listen, even if you think you know what “really happens” in this godforsaken and deadly “darkest corner of the American ‘justice’ system.” Is this really the way we want to be remembered by generations that follow? As a country with so little collective courage and integrity that we allowed our fellow human beings to be treated this way? Think about it!

Even in this grimmest of worlds, their are true heroes. First and foremost, of course, are the dedicated attorneys of the New Due Process Army (“NDPA”), many working pro bono or “low bono” to vindicate essential legal, constitutional, and human rights in a system designed to grind them into dust and “dehumanize and demonize the other.”

Sound familiar? It should to anyone who studied Hitler’s rise to power in Germany. By and large, it wasn’t the “Brown Shirts” and the party faithful who enabled his rule. It was judges, lawyers, ministers, priests, businessmen, doctors, corporate moguls, and the average German who “facilitated” his annihilation of millions.

And, it started gradually, with laws stripping Jews of citizenship, property, and all legal rights and judges who enthusiastically enforced them, even against their own former judicial colleagues. Once people aren’t “humans” any more (Hitler liked the term “subhumans”) or “persons” before the law, there is no limit to what can be done, particularly when complicit judges join in the “fun and games.”

Among the other heroes are two “Courtside regulars:” Round Table Member Judge (Ret.) Ilyce Shugall and NAIJ President Judge A. Ashley Tabaddor.

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

At a time when too many with knowledge of the travesty of what’s going on in our “Star Chambers” have chosen to look the other way or “go along to get along,” Ilyce and Ashley have consistently “spoken truth to power” in the face of a regime that often abuses its authority by punishing truth, honesty, and decency. Indeed, Billy Barr’s highly unethical move to “decertify” the NAIJ is a blatant attempt to punish and silence Ashley for revealing the truth.

One minor correction. Sam says that the Immigration Judges and the prosecutors both work for the DOJ. Actually, the prosecutors work for DHS. But, it’s largely a “distinction without difference” because the agenda at both DOJ and DHS is set by Trump, Miller, and the rest of the White Nationalist nativist cabal.

Indeed, former AG Sessions told Immigration Judges they were “partners” with the DHS prosecutors in enforcing immigration laws. So, the observation that in many Immigration Courtrooms migrants, including the unrepresented and children, face “two prosecutors” — the “judge” and the DHS Assistant Chief Counsel is accurate. The podcast relates how in some courts the “judge speaks for the prosecution,” the Assistant Chief Counsel is a “potted plant,” and nobody speaks for justice or the rights of the migrants. What’s missing: The impartial “neutral decisionmaker” required by the Due Process Clause of the Fifth Amendment to the Constitution.

Thanks Ashley and Ilyce for all you do! You are true superstars!

As my friend, Professor Ayo Gansallo says on her e-mail profile:

Vote like your rights depend upon it!

“A country is not only what it does…it is also what it tolerates.”

Kurt Tucholsky

Due Process Forever! Star Chambers Never!

PWS

03-29-20

A LITTLE LIGHT IN A TIME OF DARKNESS, AS JUDGE DOLLY GEE ORDERS REGIME TO RELEASE DETAINED KIDS — Four In “America’s Kiddie Gulag” Have Already Tested Positive For COVID-19!

https://www.nytimes.com/2020/03/29/us/coronavirus-migrant-children-detention-flores.html?referringSource=articleShare

Miriam Jordan reports for The NY Times:

By Miriam Jordan

March 29, 2020
Updated 4:02 a.m. ET

LOS ANGELES — Concerned that thousands of migrant children in federal detention facilities could be in danger of contracting the coronavirus, a federal judge in Los Angeles late on Saturday ordered the government to “make continuous efforts” to release them from custody.

The order from Judge Dolly M. Gee of the United States District Court came after plaintiffs in a long-running case over the detention of migrant children cited reports that four children being held at a federally licensed shelter in New York had tested positive for the virus.

“The threat of irreparable injury to their health and safety is palpable,” the plaintiffs’ lawyers said in their petition, which called for migrant children across the country to be released to outside sponsors within seven days, unless they represent a flight risk.

There are currently about 3,600 children in shelters around the United States operated under license by the federal Office of Refugee Resettlement, and about 3,300 more at three detention facilities for migrant children held in custody with their parents, operated by the Immigration and Customs Enforcement agency.

Advocates for immigrants have tried for decades to limit the government’s ability to detain children apprehended after crossing the border, arguing that it is psychologically harmful, violates their rights and undermines their long-term health.

Now, some say, the coronavirus represents an even more immediate threat.

In addition to the four children who tested positive in New York, at least one child is in quarantine and awaiting results of a test for the virus at a detention facility operated by ICE, according to documents filed with the court.

. . . .

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

Read the rest of Miriam’s report at the above link.

Wow! Dateline 4:02 AM! Miriam is always on the job to make sure we get the latest news! Thanks to her and many other dedicated journalists for shedding some light on the way our regime treats the most vulnerable among us in the time of need!

Pretty shabby that judges under prodding from dedicated members of the New Due Process Army have to order the kakistocracy to “do the right thing.”

Some states and localities are actually doing the right (and smart) things on their own initiative. But, that wouldn’t be DHS or EOIR under the Trump regime.

PWS

03-29-20

N.J. STATE BAR SEEKS GOVERNOR’S INTERVENTION AFTER DOJ IGNORES PLEAS TO CLOSE UNSAFE N.J. IMMIGRATION COURTS!☠️☠️☠️☠️☠️

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

NDPA stalwart and Round Table Member Hon. Sue Roy sends this:

March 26, 2020

VIA EMAIL ONLY Hon. Phil Murphy Governor

State of New Jersey Office of the Governor P.O. Box 001

Trenton, NJ 08625

Dear Governor Murphy,

Re: The Closure of the Newark and Elizabeth Immigration Courts

NEW JERSEY STATE BAR ASSOCIATION

EVELYN PADIN, PRESIDENT Law Office of Evelyn Padin 286 First Street

Jersey City, NJ 07302 201-963-8822 • FAX: 201-963-8874 evelyn@lawjcnj.com

The New Jersey State Bar Association (NJSBA) is requesting that the Newark and Elizabeth Immigration Courts be closed immediately, in the interest of the health and safety of the residents of NJ and the country. In support of this request, the NJSBA asks you to consider the following:

NEWARK IMMIGRATION COURT:

On March 6, 2020, the Newark Immigration Court, located on the 12th floor of the Rodino Building, 970 Broad Street, Newark, NJ, was temporarily closed for the afternoon because an attorney who had been exposed to COVID-19 and who was experiencing symptoms was present in court.

On March 9, 2020, the Newark Immigration Court reopened, and remained open until March 18, 2020. During that period of time, literally thousands of respondents and their family members were required to appear at master calendar and individual hearings, along with their attorneys, attorneys from the Office of Chief Counsel, Court staff, interpreters, security guards and Immigration Judges.

It was later learned that a second private attorney and an interpreter have tested positive for COVID-19 after being in court on March 11, 2020. The attorney is quite ill. Approximately 70 other cases were heard that morning before the same Immigration Judge, who is currently under self-quarantine. That is only a fraction of the people who were present at court that day. Because of the volume of individuals who must appear at the Newark Immigration Court on any given day, the majority of individuals must wait together, sometimes for hours, in an extremely small waiting room, in which all attorneys, courts staff, interpreters, security guards and judges must also pass.

New Jersey Law Center • One Constitution Square • New Brunswick, NJ 0 8901-1520

732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • www.njsba.com

It was also learned that an attorney from the DHS Office of Chief Counsel, who was present in Court on March 13, has not only tested positive for COVID-19 but is currently in a medically induced coma in ICU fighting for his life. The entire staff of the Office of Chief Counsel, which is primarily located on the 13th Floor of the Rodino Building, has been placed under required quarantine for a period of two weeks.

As a result of this, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a directive on Twitter and Facebook stating that the Newark Immigration Court would be closed from March 18-April 10, 2020, and that all court filings would be considered timely filed on April 10, when the court reopened.

Last night, March 25, at 9:30 pm, EOIR announced via Twitter and Facebook that Newark Immigration Court would reopen starting TODAY, March 26. No further information was given to the public, or, notably, the Immigration Judges or the court staff. It has been clarified that the Newark Court has reopened for court filings only, because EOIR has now stated that any filings due during the previous days of closure would now be due on March 30, 2020.

Some members of the court staff are now required to be present to accept in-person filings at the court window, as well as to handle filings that have been mailed to the court. The Office of Chief Counsel remains closed under quarantine, and therefore cannot accept filings.

The reopening of the Newark Immigration Court, even for a limited purpose, is in clear violation of Executive Order 107. The functions of the Court at this time are non-essential, because the Court does not handle detained cases. Moreover, the reopening is putting Court staff in jeopardy of not only exposure to the virus themselves, but also of spreading it to others. The City of Newark is under a shelter-in-place restriction, and, this morning, the U.S District Court for the District of New Jersey just issued an order closing the Martin Luther King and Frank R. Lautenberg courthouses because several employees have confirmed positive COVID-19 tests. The courts are closed immediately and will remain closed through April 6, 2020.

It should be noted that the courthouses are located next door to the Rodino building, and the U.S. Attorney’s Office is in the Rodino Building. Staff, attorneys, and members of the public use the same parking facilities, elevators, and even cafeterias located in the buildings.

Therefore, for all of the above reasons, the Newark Immigration Court should be closed immediately and remain closed until its scheduled reopening date of April 10, at the earliest.

ELIZABETH IMMIGRATION COURT:

The Elizabeth Immigration Court is located at 625 Evans Street, Elizabeth, NJ, and is located in the same building as, and in close proximity to, ICE detainees. The Elizabeth Court handles detained cases and is currently open.

On March 13, 2020, a medical staff person who works in the detention center was presumed to have been exposed to COVID-19; this diagnosis was later confirmed. Moreover, because attorneys for the Office of Chief Counsel travel back and forth between the Elizabeth Immigration Court and the Detention Center, where there is an auxiliary OCC office, and the Rodino Building in Newark, the OCC in Elizabeth has been included in the mandatory, two-week quarantine. Numerous private and pro bono

attorneys also routinely appear in both courts, as do interpreters and ICE personnel.

One of the Elizabeth Immigration Judges has been out on leave; an Immigration Judge from Newark, whose husband had been quarantined but tested negative for the virus, is now handling the docket in Elizabeth.

Immigration attorneys are allowed to appear telephonically if they choose; court staff, judges, security guards, interpreters, and, of course, the detainees housed in Elizabeth are there in person. The Office of Chief Counsel is still under quarantine; their attorneys have been appearing telephonically.

On March 24, 2020, at 2:30 pm, EOIR announced, via Twitter and Facebook, that the Elizabeth Immigration Court was closing for the rest of the afternoon because they had received confirmation of “the presence of an individual with a test-confirmed Coronavirus diagnosis.”

The Elizabeth Immigration Court reopened the next day and remains open.

The Elizabeth Immigration Court hears cases for individuals who are housed at Elizabeth Detention Center, as well as at Essex and Hudson County Jails. The individuals housed at those jails are usually seen via tele video. However, a detainee and a senior staff person at Essex County Jail both have positive COVID-19 diagnoses and are experiencing serious symptoms. And ICE detainees at all three locations are engaging in hunger strikes because they are afraid of contracting the virus as well.

Moreover, on March 25, EOIR issued a requirement that all attorneys dealing with inmates in ICE detention centers and courts MUST bring their own personal protective equipment (PPE) in order to be allowed to enter the facilities. Therefore, either attorneys cannot adequately represent their clients, or they must obtain PPE at the expense of health care providers and first responders who desperately need this equipment.

The NJSBA recognizes that it is more difficult to close a court that handles detained cases, as that imposes a reduction of the individuals’ constitutional rights. However, the NJSBA believes that a short- term closure of two weeks, in order to ensure that anyone who has been exposed to COVID-19 does not spread the virus, even unwittingly, is extremely important to protect the health and safety of the individuals who are housed there, who work there, and who must report there, as well as the public at large.

The NJSBA would, at the same time, ask that the State confer with ICE regarding the release of any non-criminal or low-risk immigration detainees. This would further aid in slowing the spread of the virus, as well as protecting the individuals who work at the Elizabeth Immigration Court and Detention Center and would minimize significantly the numbers of detained cases on the court docket. Should ICE forbear from placing new detainees in custody within NJ facilities would also stem the spread of the virus to vulnerable inmate populations. Alternatives to detention, such as ankle-bracelets, or mandatory video or telephonic check-ins would help ensure that ICE’s mission is not curtailed.

It should be noted that the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA) and the American Federation of Government Employees #511 (AFGE/ICE Professionals Union) issued a joint statement on March 22, 2020, asking for the nationwide closure of all immigration courts across the country.

Immigration attorneys, immigration courts staff, and immigration prosecutors are literally having to

make life and death decisions every day because of EOIR’s callous disregard for the health and safety of its employees, immigrants, anyone who must come into contact with the courts, and the

public. Accordingly, NJSBA is asking you to close the NJ immigration courts immediately to preserve the health and safety of the residents of NJ.

Respectfully submitted,

Evelyn Padin, Esq. President

cc: Senator Robert Menendez Senator Cory Booker

Matthew Platkin, Esq., Counsel to the Governor

Susan Roy, Esq., Chair, NJSBA Immigration Law Section Angela C. Scheck, Executive Director

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

Thanks, Sue, for all you do!

To be honest, I’m not sure that a State Governor has authority to close down a Federal Office, even in times of emergency. But, this absurd, yet deadly, situation shows the arrogant disrespect for human life, common sense, and basic decency of Barr and his EOIR toadies.

Normally, you would expect cooperation, coordination, and support from the Feds in time of a health emergency. In the age of Trump and his kakistocracy, not so much. After all, you’re dealing with a regime headed by a maliciously incompetent dude who couldn’t wait to start undermining the best advice of his own doctors and nearly all health care professionals in the U.S. Bad things happen to a country that empowers a kakistocracy!

PWS

03-27-20

KILLER “COURTS” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻 — “Malicious Incompetence” Or “Criminal Negligence” @ EOIR? — Experts Chase & Dzubow Rip Into EOIR/DOJ Officials For Needlessly Endangering Lives! — Kakistocracy Turns Deadly!

https://www.jeffreyschase.com/blog/2020/3/26/like-firing-randomly-into-a-crowd

Hon. Jeffrey S. Chase in Jeffrey S. Chase Blog:

Like “Firing Randomly Into a Crowd”

On March 23, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a sua sponte order in a case pending before it, ordering the Petitioner’s immediate release from detention “in light of the rapidly escalating health crisis, which public health authorities predict will especially impact immigration detention centers.” In taking such action, the court used its authority to protect those under its jurisdiction.This is what judges and courts are supposed to do.

In contrast, the leadership of EOIR, the agency which oversees our nation’s immigration courts, sees its mission quite differently. With shocking indifference to those subject to its authority, including its own employees as well as members of the public, EOIR’s present leadership seeks only to please its Department of Justice masters, much like a dog rolling over or playing dead to earn a pat on the head from its owner.

As we all began to comprehend the seriousness of the coronavirus pandemic weeks ago, EOIR refused to close immigration courts out of fear of sending a message contrary to Trump’s statements that the health crisis was a “hoax.” Christopher Santoro, the coward holding the title of Acting Chief Immigration Judge, ordered court staff to remove CDC-issued advisories on ways to help stop the spread (i.e. by not shaking hands) on the grounds that the immigration judges lacked the authority to hang such notices in their own courtrooms. In defense of his stupidity, Santoro offered the age-old excuse of the weak: that he was only following orders.

As the virus spread, and people began dying, EOIR kept its courts open far longer than it should have. An ICE attorney who represented the government throughout a crowded Master Calendar hearing in Newark, NJ on March 13 is presently in a coma in intensive care with COVID-19 fighting for his life. I’ve heard that an immigration judge in one of NYC’s immigration courts is presently ill with COVID-19 and pneumonia.There have been additional reports of others at immigration detention centers testing positive.

As cities locked down and sheltered in place, EOIR finally agreed to postpone non-detained hearings, but only until April 10. Hearings in detained courts continue to go forward.And for some reason, non-detained courts that were closed and should have remained so were reopened for the filing of documents only, with such openings announced by nighttime tweets. On Wednesday night, EOIR tweeted that several courts would “open” the next morning, without explaining whether that meant hearings that had previously been announced as postponed would instead go forward the following morning.As this occurred after business hours, there was no one to call for clarification. In fact, the opening was only to file documents.EOIR’s leadership (for want of a better term) has decided that all court filings due during the court closings are now due on March 30.Many lawyers in NYC have no way to meet this deadline, as their office buildings have been locked in compliance with the state’s shutdown order.

In order to accept these filings, EOIR is forcing court clerical staff to leave the safety of their homes, disobey the state PAUSE directive and expose themselves and their family members to possible infection in order to report to work. In NYC, traveling to work for most employees requires riding trains and buses, further increasing the risk of exposure.As schools are closed, how those court staff with child care needs will manage in a time requiring social isolation is unknown.

Furthermore, not all judges hearing detained cases are granting continuances despite the crisis. EOIR has not informed judges that the present crisis exempts them from meeting their performance metrics, which requires all judges to complete 700 cases per year, and to finish 95 percent of cases on the day of their first-scheduled individual hearing. Newly hired judges, who are on probation for two years, are therefore being forced to choose between their own job security and the health and welfare of all those who appear in their courts.

In recent days, EOIR has been besieged with letters from health care professionals, law professors, and various legal and advocacy organizations containing strong arguments to do what the Ninth Circuit had done instinctively and without having to be asked. In one of these letters, attorney George Terezakis, writing on behalf of the New York-based Association of Deportation Defense Attorneys (on whose Board of Directors I sit), described how the mother of a detained respondent who traveled from her home in Long Island to the court in Lower Manhattan by commuter train and subway to file a document for her son’s hearing was later diagnosed with the coronavirus. Terezakis continued: “Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees’ family members will foreseeably and inevitably kill someone…keeping the courts open ensures continued, needless infection, serious illness and death…”The letter continued: “This is a real crisis requiring real leadership to take decisive action that will place the safety of those under its jurisdiction ahead of other concerns. There is no escaping the inevitable consequences of inaction.”

As for Santoro, “I was only following orders” has historically fared poorly as a defense. Someone whose name is preceded by the title “Chief Immigration Judge” is required to stand up and take appropriate action in a time of crisis, and accept the consequences of such action. And for those in EOIR’s leadership chain who refuse to do so, it is incumbent on all of us to do everything in our power to ensure that they will be held fully accountable for their inaction under the next administration.

Copyright 2020 by Jeffrey S. Chase. All rights reserved. Reprinted with permission.

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

https://www.asylumist.com/2020/03/26/incompetence-and-reckless-at-eoir-endanger-lives/

Jason Dzubow writes in The Asylumist:

The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

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

Thanks, Jeffrey, Jason, and Sue, my friends, for “telling it like it is!” Now is not the time for “go along to get along” bureaucratic responses.
Unfortunately, attorneys and court staff might now start paying with their lives for EOIR’s inexcusable two-decade failure to implement a functional e-filing system.
As one of my Round Table colleagues said, “Since when is a late night tweet ‘official notice?’” Don’t remember anything about “notice by tweet” in 8 CFR!
As I noted previously, J.R. and his tone-deaf, complicit Supremes effectively repealed the “Bivens doctrine,” holding Federal officials responsible for “Constitutional torts” committed outside the scope of their official duties. They thereby essentially gave rogue Federal officials a “license to kill,” at least where the victim was merely an unarmed Mexican teenager. It appears that Barr, McHenry, and others in the “chain of command” are trying out their new “licenses.” They had better hope that J.R. & Co’s “willful blindness” and unwillingness to stand up for lives and Constitutional rights extend even when American citizen lawyers and court clerks are among the casualties.
Not surprisingly, EOIR’s contempt for due process and the lives of asylum seekers, families, children, and other migrants has expanded to include the lives of their own employees and members of the public forced to deal with this godawful, unconstitutional mess.
When the reckoning comes, we should not forget the negligent complicity of Congress as well as the Article III Courts for allowing the life-threatening, dysfunctional, unconstitutional mess that EOIR has become continue to operate and to threaten the health, safety, and welfare of all Americans.

PWS

03-27-20

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