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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished with permission.

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

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

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

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

Due Process Forever!

PWS

05-11-20

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

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

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

Suzanne writes in Law360:

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

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

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

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

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

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

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

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

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

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

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

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

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

High Rates of Asylum Denials

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

Due Process Forever!

PWS

05-11-20

THE BAN ON STIMULUS PAYMENTS TO US CITIZENS WITH UNDOCUMENTED FAMILY MEMBERS IS STUPID, CRUEL, & UNFAIR — Now, Its Constitutionality Is Being Challenged In Federal Court, Reports Nicole Narea @ Vox News!

Nicole Narea
Immigration Reporter
Vox.com

https://apple.news/AgDswic0ERvCIlHoCI2oyaA

Nicole writes:

Immigrant advocates are arguing in court that American citizens who are married to unauthorized immigrants should still be eligible for stimulus checks along with their children.

The $2 trillion Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, gives most taxpayers up to $1,200 and $500 for each of their children under the age of 17. But even if they pay taxes, unauthorized immigrants are not eligible for the stimulus checks, which the government started sending out in April. Neither is anyone else in their household, including their spouses and children, even if their spouses and children are US citizens.

Advocates from Georgetown Law and Villanova Law filed a class action lawsuit in Maryland federal court on Wednesday challenging the CARES Act on behalf of seven US citizen children of unauthorized immigrant taxpayers. They argued that it unfairly discriminates against these children based on their parents’ immigration status and denies them equal protection under the law in violation of the US Constitution’s due process clause.

Immigrant advocates at the Mexican American Legal Defense and Education Fund also filed a lawsuit last week arguing that the CARES Act is unconstitutional because it “discriminates against mixed-status couples.”

“The refusal to distribute this benefit to US citizen children undermines the CARES Act’s goals of providing assistance to Americans in need, frustrates the Act’s efforts to jumpstart the economy, and punishes citizen children for their parents’ status — punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes,” Mary McCord, legal director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, said in a statement.

How the CARES Act penalizes unauthorized immigrants and their families

The bill excludes those in households with people of mixed immigration status, where some tax filers or their children may use what’s called an Individual Taxpayer Identification Number (ITIN).

The IRS issues ITINs to unauthorized immigrants so they can pay taxes, even though they don’t have a Social Security number. If anyone in the household uses an ITIN — either a spouse or a dependent child — that means no one in the household will qualify for the stimulus checks unless one spouse served in the military in 2019.

If the law is allowed to stand, it could impact an estimated 16.7 million people who live in mixed-status households nationwide, including 8.2 million US-born or naturalized citizens.

The exclusion for mixed-status households defies current practices: Many other federal programs are designed in such a way that US citizen children of unauthorized immigrants can access necessary benefits, including the child tax credit, food stamps, housing assistance, welfare benefits, and benefits from the Special Supplemental Nutrition Program for Women, Infants, and Children.

But there is a precedent for this kind of exclusion. Amid the global financial crisis in 2008, Congress handed out tax rebates to most American taxpayers, except for the spouses of immigrants who didn’t have Social Security numbers.

. . . .

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Read the rest of Nicole’s outstanding analysis at the link.

Three cheers for Georgetown Law & Villanova Law!

PWS

05-07-20

HUMAN RIGHTS IN THE TIME OF PANDEMIC: Morally Right & Essential To Health! 🗽 — But, Trump, Miller, & The White Nationalists Care Only About Preserving Their Own Power!👎🏻

Kenneth Roth — Kennith Roth
Executive Director
Human Rights Watch

https://www.washingtonpost.com/opinions/2020/05/06/we-can-beat-virus-only-by-protecting-human-rights/

Kennith Roth, Executive Director of Human Rights Watch writes in WashPost:

Some governments around the world are using the pandemic to claim that human rights are a luxury we cannot afford. With the crisis as a pretext, they are arresting critics, intensifying surveillance and seizing broad emergency powers. The underlying assumption is clear: Safeguarding human rights is a nicety that must be jettisoned when times get tough.

In fact, though, the pandemic has also turned out to be an opportunity to promote human rights — not only as a matter of principle but also for reasons of pragmatism. The crisis has shown that officials who ignore human rights jeopardize our health, while respecting human rights is the best public health strategy.

Good health policy, for example, requires timely access to accurate information so governments can quickly respond to any threat. The early stages of the pandemic in Wuhan, China, illustrate the danger of suppressing speech about public health.

. . . .

Perhaps the ultimate threat is from governments that assume excessively broad “emergency” powers. International human rights law recognizes that certain rights — such as our right to travel or congregate during an infectious-disease outbreak — must give way in time of crisis, so long as restrictions are lawful, necessary and proportionate. Yet leaders around the world are using the pandemic to strengthen their rule, dismantle checks and balances, and escape accountability at the expense of our rights. All of these behaviors run counter to effective health-care policy and can easily backfire.

When systems of democratic accountability are in place, politicians, journalists and civic activists can push back if leaders such as Jair Bolsonaro in Brazil, John Magufuli of Tanzania, or Donald Trump in the United States downplay the virus or prioritize their electoral fortunes.

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

That pushback is precluded when leaders use the pandemic to undermine restraints on their power, such as Hungary’s Viktor Orban, Egypt’s Abdel Fatah al-Sissi, Cambodia’s Hun Sen and El Salvador’s Nayib Bukele. Their records in containing the coronavirus contrast unfavorably with such open and transparent leaders as New Zealand’s Jacinda Ardern, Taiwan’s Tsai Ing-wen and Germany’s Angela Merkel.

In the end, those who treat human rights as an obstacle to public health have it backward. Respecting human rights is not only the right thing to do. It is also essential if governments are to protect the public’s health rather than their own grasp on power.

P***************

Read the complete article at the link.

Undoubtedly, Trump, Miller, and the rest of the White Nationalists are out to destroy America by attacking human rights and using the pandemic as a justification. And, officials of DHS and DOJ who parrot this nonsense, as well as the Federal Judges who “go along to get along” with abrogation of international standards and human rights based on bogus “emergency” rationales are also guilty.

They only way to get our country and our humanity back is to vote the Trumpists out at all levels of the Government which will allow us to start appointing better Federal Judges who put the Constitution, individual rights, and human rights first.

Due Process Forever. Complicity in the Face of Tyranny, Never!

PWS

05-06-20

JOURNALISM: STAR ⭐️ IMMIGRATION REPORTERS O’TOOLE (LA TIMES) & GREEN (VICE), & NPR’S “THIS AMERICAN LIFE” WIN PULITZER 🏆 FOR REPORTING ON HUMAN WRECKAGE ☠️ CREATED BY TRUMP’S “LET ‘EM DIE IN MEXICO” ⚰️ PROGRAM (A/K/A “Migrant Protection Protocols”)

Molly O’Toole
Immigration Reporter
LA Times

Emily Green
Latin America Reporter
Vice News

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=2c0813d6-09a3-48f9-9e01-69b91e9dd934&v=sdk

Joe Mozingo reports for the LA Times:

The Los Angeles Times has won two Pulitzer Prizes, for art critic Christopher Knight’s watchdog coverage of plans for the new Los Angeles County Museum of Art, and reporter Molly O’Toole’s audio story about U.S. asylum officers’ discontent with President Trump’s “Remain in Mexico” policy.

The prizes were awarded Monday in the criticism and audio reporting categories. O’Toole and The Times shared the audio prize with journalists from “This American Life” and Vice.

. . . .

The Pulitzer judges cited O’Toole and Vice freelancer Emily Green for “The Out Crowd,” broadcast on NPR’s “This American Life,” for “revelatory, intimate journalism that illuminates the personal impact of the Trump administration’s ‘Remain in Mexico’ policy.”

O’Toole, 33, had covered immigration and border security for a decade and decided to look closely at a new policy targeting asylum seekers, not just people who had illegally crossed the border.

She found veteran asylum officers deeply troubled by directives that in effect forced them to push many Mexican and Central American immigrants back to deadly violence in their home countries.

“The officers felt very strongly about refugee asylum and the idea of the U.S. as a safe haven,” she said. “Now they were taking part in a policy that they felt was wrong, morally and legally. But they had few choices, either continue being part of this administration or quit and lose their career.”

Audio reporting is a new Pulitzer category in 2020.

. . . .

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Read Joe’s full report at the link.

Congrats and thanks to Molly, Emily, and the folks at “This American Life” for all they do!👍

They are making a permanent record of the disgusting Human Rights abuses ☠️ and lawlessness of the Trump regime for posterity, even as the Supremes and Congress gutlessly look the other way 👎!

Due Process Forever! Complicity Never!

PWS

05-05-20

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

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

Tanvi writes for Roll Call:

. . . .

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

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

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

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

New roles

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

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

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

EOIR said its office first proposed that designation in 2000.

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

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

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

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

Faster hiring process

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

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

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

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

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

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

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

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

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

. . . .

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Read Tanvi’s full article at the link.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

05-05-20

🏴‍☠️NEW JIM CROW: Miller Uses Pandemic To Revive Racist Myths & Stereotypes About Dangers Of Immigrants! — A White Nationalist’s Dream Comes True!

James “Jim” Crow
Symbol of American Racism

Stephen Miller Cartoon — Stephen Miller & Count Olaf
Evil Twins, Notorious Child Abusers

Caitlin Dickerson and Michael D. Shear report for The NY Times:

From the early days of the Trump administration, Stephen Miller, the president’s chief adviser on immigration, has repeatedly tried to use an obscure law designed to protect the nation from diseases overseas as a way to tighten the borders.
The question was, which disease?
Mr. Miller pushed for invoking the president’s broad public health powers in 2019, when an outbreak of mumps spread through immigration detention facilities in six states. He tried again that year when Border Patrol stations were hit with the flu.
When vast caravans of migrants surged toward the border in 2018, Mr. Miller looked for evidence that they carried illnesses. He asked for updates on American communities that received migrants to see if new disease was spreading there.
In 2018, dozens of migrants became seriously ill in federal custody, and two under the age of 10 died within three weeks of each other. While many viewed the incidents as resulting from negligence on the part of the border authorities, Mr. Miller instead argued that they supported his argument that President Trump should use his public health powers to justify sealing the borders.
On some occasions, Mr. Miller and the president, who also embraced these ideas, were talked down by cabinet secretaries and lawyers who argued that the public health situation at the time did not provide sufficient legal basis for such a proclamation.
That changed with the arrival of the coronavirus pandemic.
Within days of the confirmation of the first case in the United States, the White House shut American land borders to nonessential travel, closing the door to almost all migrants, including children and teenagers who arrived at the border with no parent or other adult guardian. Other international travel restrictions were introduced, as well as a pause on green card processing at American consular offices, which Mr. Miller told conservative allies in a recent private phone call was only the first step in a broader plan to restrict legal immigration.
But what has been billed by the White House as an urgent response to the coronavirus pandemic was in large part repurposed from old draft executive orders and policy discussions that have taken place repeatedly since Mr. Trump took office and have now gained new legitimacy, three former officials who were involved in the earlier deliberations said.
One official said the ideas about invoking public health and other emergency powers had been on a “wish list” of about 50 ideas to curtail immigration that Mr. Miller crafted within the first six months of the administration.
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He had come up with the proposals, the official said, by poring through not just existing immigration laws, but the entire federal code to look for provisions that would allow the president to halt the flow of migrants into the United States.
Administration officials have repeatedly said the latest measures are needed to prevent new cases of infection from entering the country.
“This is a public health order that we’re operating under right now,” Mark Morgan, the acting commissioner of Customs and Border Protection, told reporters earlier this month. “This is not about immigration. What’s transpiring right now is purely about infectious disease and public health.”
The White House declined to comment on the matter, but a senior administration official confirmed details of the past discussions.
The architect of the president’s assault on immigration and one of Mr. Trump’s closest advisers inside the White House, Mr. Miller has relentlessly pushed for tough restrictions on legal and illegal immigration, including policies that sought to separate families crossing the southwest border, force migrants seeking asylum to wait in squalid camps in Mexico and deny green cards to poor immigrants.
Mr. Miller argues that reducing immigration will protect jobs for American workers and keep communities safe from criminals. But critics accuse him of targeting nonwhite immigrants, pointing in part to leaked emails from his time before entering the White House in which he cited white nationalist websites and magazines and promoted theories popular with white nationalist groups.

. . . .

**********************
Read the full article at the link.

As America suffers, immigrants, both legal and “undocumented,” are on the front lines of those “essential workers” risking their lives to keep us healthy, safe, fed, and clothed.

Meanwhile, neo-Nazi Miller remains “on the dole” — publicly funded for putting out a steady stream of discredited and xenophobic actions designed to exploit, dehumanize, and demean many of the most courageous and necessary among us.

Can it get any more vile and disgusting?

Nearly 55 years after the end of WWII, Trump & Miller are reviving many aspects of the racist ideology and actions that we supposedly fought to end forever. Raises the question of who really won the war.

Always the opportunists, Trump and Miller now see the crisis that their “malicious incompetence” helped to aggravate as a chance to target both “Optional Practical Training” (“OPT”) for foreign students and Chinese students, one of the largest groups of those studying in the U.S. You can read about it in this article by Stuart Anderson in Forbes.https://apple.news/ADkCNTe_gTje__BlQ8c-8pg

Stuart Anderson
Executive Director
National Foundation for American Policy

OPT unquestionably benefits our country as well as the students, many of whom remain and become important parts of our society. The targeting of Chinese students certainly fits with the far right’s Anti-Asian movement that has helped spike a notable increase in hate crimes directed against Asian Americans during the pandemic. Could the revival of the Chinese Exclusion Act be far beyond on the Trump/Miller Jim Crow agenda?

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

PWS

05-04-20

HEATHER COX RICHARDSON: The “Reopen America” Movement Has Been A Haven For White Supremacists & Neo-Nazis!

http://email.mg2.substack.com/c/eJxtkc1u4yAURp8m3iXCYDvOgkWbvyaKPeooTTuziTDc2CQ2ZADXtZ–JJnNSCOBkA4X3ct3OHNQatPTq7YuaC2YoxQ0DlOEUhIIGokwjdNA2uPJADRM1tSZFoJrW9SSMye1uj3AKCYkqGiMyOw0Dac4CpFgiIkZ4uKUwjSNOCpOKLi1ObJWSFAcKHyC6bWCoKaVc1c7Ik8jvPKrAuYqMFx_GckrZoTVamLbwjrGLxOuG19z9bth_RiPMcJoRFZOX0CNyAL6bcjxof_A9WVz1mG2L7tsUQ67-bYrSI7-cpSd33C2yOymqSsx3yTZ_i36sXiN8mEZ57KT7CMffJ3kLwe522-6fJ8NG885Ocg7X88GMQ_73–rs1jXn4XcziYh-nWWccTquWsO789DuX593o1TxNo8X-2Xf5z8mZrP5Zd4eQokvU2OfGgowQlJJuGkunRKJ9a4uB1FqCnxP78ODN2CUlKVNsT-nun6jr2Noz-bVknXH0GxogbxEOUeZu-5u_4KVEFna3AOzAN6exGOE0QC30lor1jR_8X_Df8lvRc

Heather writes:

. . . .

The political conversation is also shifting to benefit the president in a second way: the now repeated warnings that the coronavirus might have a “second wave” and peak again in the fall. Here’s the thing: we never finished the first wave. Our highest daily number of deaths was… yesterday, when 2,909 Americans died. We are still very much in the heart of this first wave, but by shaping this conversation as looking ahead to concern in the future, it rhetorically accomplishes what Trump set out to do just a week ago—convince us that we have successfully lived through the worst part of the pandemic and that it is safe to reopen the economy.

Finally, the political conversation is shifting in way that undermines our nation’s deepest principle. People are actually arguing about whether it might be a good thing to kill off society’s weakest members. A member of a planning commission from the San Francisco area took to Facebook to suggest we should just let coronavirus take its course. Lots of people would die, he wrote, primarily old and sick people, but that would take the pressure off Social Security and lower health care costs. There would be more jobs and housing available. And as for homeless people, when they died it would “fix what is a significant burden on our society….”

This man was removed from office, but his sentiments are not isolated. It is impossible to overlook that the people demanding states ease restrictions are overwhelmingly white, when both African Americans and Native Americans are badly susceptible to Covid-19. In Chicago, for example, 32% of the population is African American; 67% of the dead have been black. Further south, the Navajo Nation is behind only New York and New Jersey for the highest infection rate in the US.

White supremacists are celebrating these deaths, and calling for their supporters to infect minorities with the virus. But even those who insist they simply want society to open up again are demanding policies that will disproportionately kill some Americans at higher rates than others. Some are overt about their hatreds—like the Illinois woman who carried a sign with the motto from Auschwitz and the initials of the Jewish governor—and others simply sacrifice minorities in the course of business, as Trump did when he used the Defense Production Act to keep infected meat processing plants operating, plants overwhelmingly staffed by black and brown people.

If we accept the idea that some of us matter more than others, we have given up the whole game. This country was—imperfectly, haltingly—formed on the principle that we are all created equal, and equally entitled to life, liberty, and the pursuit of happiness. If we are willing to admit that our founders were wrong, that we are not equal, that older Americans, Black Americans, Brown Americans, sick Americans, all matter less than healthy white Americans, we have admitted the principle that we are not all created equal, and that some of us are better than others.

This is, of course, the principle of white supremacy, but it does no favors to most white people, either. Once we have abandoned the principle of equality, any one of us is a potential sacrifice.

And then it will not matter anymore what our political narrative is, for it will be as much as our lives are worth to disagree with whatever our leaders say.

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

Read the latest installment of Heather’s “Letters From An American” at the above link.

A real President might have used the Defense Production Act to order “Big Meat” 🥩 to immediately take the necessary steps to insure the safety of its workers in accordance with Federal guidelines so they could return to work. He could have ordered companies to prioritize the production of personal protection equipment for meat workers to the same degree as that for “first responders.”

Instead, he basically ordered the workers, usually low paid and heavily made up of minorities, immigrants, and undocumented residents to return to their dangerous and low paying jobs while absolving “Big Meat” 🥩 of responsibility for negligent disregard of their workers’ health and welfare.

Clearly, for Trump and his band, concern for human life stops at birth. The whole premise of Trumpism and the modern GOP has been that some lives matter more than others.

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

PWS

05-03-20

DON KERWIN @ CMS: “Detention Should Not Be A Death Sentence.”☠️☠️⚰️⚰️

Donald M. Kerwin
Executive Director
Center for Migration Studies

https://cmsny.org/publications/immigrant-detention-covid/

This essay was last updated on May 2.

In late March, I argued in an earlier version of this paper that the US Department of Homeland Security (DHS) should immediately embark on an aggressive program of release, supervised release and alternative-to-detention (ATD) programs for immigrant detainees in response to the Coronavirus Disease 2019 (COVID-19) pandemic.[1] Since that time, the number of immigrants in Immigration and Customs Enforcement (ICE) detention has fallen by nearly 8,400, but not nearly as fast or dramatically as necessary, given the perilous conditions in which nearly 30,000 immigrant detainees remain and how rapidly the virus has swept through immigrant detention facilities throughout the country and beyond.

The Size of the Crisis

On March 17, Immigration and Customs Enforcement (ICE) reported that there were no “confirmed” cases of COVID-19 in its detention centers, a meaningless claim given the paucity of testing and the certainty of “unconfirmed” cases, as affirmed by ensuing lawsuits.[2] A month later, ICE reported 124 confirmed cases. Six weeks later, as of May 1, this number had more than quadrupled to 522 cases in 34 facilities, as well as 39 confirmed cases among ICE employees in those facilities (ICE 2020b).[3]

Yet ICE’s figures point to only the tip of the iceberg. By mid-April, ICE had tested only 300-400 detainees for COVID-19 infection (Misra 2020). By May 1, it had tested 1,073 detainees, a very low percentage of those in its custody during the course of the pandemic (ICE 2020b). Moreover, ICE figures do not count former detainees who contracted COVID-19 in its custody,[4] a large number of whom were deported prior to being tested (Dickerson and Semple 2020). Nor do they count the infected staff of ICE contractors, including employees of the private corporations that own and operate its largest detention centers and that administer many state and local ICE contract facilities.[5] On April 2, for example, ICE reported no confirmed cases of infected detainees, but one suspected case, at the massive Stewart Detention Center in Lumpkin, Georgia (Stewart). CoreCivic, one of ICE’s largest private detention contractors, operates Stewart.[6] By April 10, ICE “knew of” 30 suspected and five confirmed cases at Stewart.[7] As of April 28, 42 CoreCivic employees and one ICE employee at Stewart had tested positive for COVID-19 (Stokes 2020). In an April 21 email to Mark Dow, Amanda Gilchrist, the Director of Public Affairs at CoreCivic said there had been 98 positive cases among CoreCivic staff since the onset of the pandemic, a number that did not count staff who had “recovered from COVID-19” and received “a doctor’s clearance to return to work” (on file with author).

ICE has confirmed that “a number of non-ICE employees (contractors) in facilities that hold ICE detainees have contracted COVID-19, and some of them died from COVID-19” (Tanvi 2020). However, it has been “unable to determine how many non-ICE personnel in state and local jails have contracted COVID-19 or died from COVID-19” (ibid.). Finally, it reports that “some non-ICE detainees in non-ICE facilities, shared with ICE detainees, also contracted COVID-19, and some of them died from COVID-19” (ibid.).

As of March 21, 38,058 immigrants were in ICE custody. By April 25, this number had dropped to 29,675 including 15,855 persons apprehended by ICE and Homeland Security Investigations, and 13,820 referred by Customs and Border Protection (CBP) (ICE 2020a). By way of comparison, Canada – which detains many times fewer immigrants than the United States – released more than one-half of those in its custody between March 17 and April 19 (Global News 2020).

As of April 25, ICE still unconscionably held 5,261 persons who had established “persecution” and “torture” claims, and who should not be detained in any circumstances, much less the present. It also continues to detain persons approved for release. In a particularly disturbing report, detainees in New York cannot post bond because of the closure of ICE’s New York City office (Katz 2020). Finally, it continues to detain families and minors. On April 13, the Washington Post reported that the population at ICE’s three family detention centers had fallen from 1,350 to 826 persons (Hsu 2020). By April 21, the number had fallen to 698 persons, including 342 minors.[8]

On March 28, a federal district judge issued a temporary restraining order that required the administration to “make and record continuous efforts” to release the more than 5,000 minors in ICE family detention facilities and Office of Refugee Resettlement (ORR) shelter-like facilities for unaccompanied minors.[9] Her decision recognized the “severity of the harm” to which children in these facilities, particularly ICE facilities, “are exposed and the public’s interest in preventing outbreaks of COVID-19 … that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems.” On April 24, the judge ordered ORR and ICE to continue “to make every effort to promptly and safely release” children with “suitable custodians.”[10]

ICE Policies and Procedures

ICE can decrease its detention population in two main ways, by admitting fewer immigrants into its system and by more generous and, in the circumstances, appropriate release standards. It has failed to move decisively enough in either direction.

. . . .

********************
Read Don’s complete article at the link.

Thanks Don!

In this regime, the Gulag is all about using the “facade” of euphemistically-named “civil immigration detention” as a way of punishing those who have the audacity to assert their legal rights, to limit their Fifth Amendment and statutory rights to counsel, to inhibit their ability to understand the applicable legal criteria and prepare their cases, to coerce them into abandoning claims for relief and waiving appeals, and to send “deterrent messages” to others.

What it doesn’t have much connection with these days is insuring appearance and protecting the public. Relatively few detained individuals have criminal records that present a realistic threat. Also, all reputable studies show that when individuals are represented by counsel, community alternatives to detention are used, and individuals actually understand the requirements, the appearance rate for those with asylum or other claims for relief approach 100%.

So, the Gulag is largely an expensive and dangerous fraud. That’s not to say that other Administrations haven’t misused detention of non-criminals. It been more or less increasing over the past four decades — ever since the Mariel Boatlift. But, this regime has gone “above and beyond” in the intentionally cruel, unnecessary, and coercive expansion and abuse of the Gulag.

The BIA has abandoned any attempt to bring integrity and uniformity to the bond system. Instead, they have adopted a “screw the individual, kiss up to Barr, Miller, & the White Nationalist politicos who run this dysfunctional system.”

The response from the Article IIIs has been mixed.

Hopefully, the extensive U.S. District Court detention litigation across the country will finally “open the eyes” of the Article III Judiciary to the callous disregard of human life and welfare and the abusive, racially driven, punitive intent fueling the regime’s “Gulag expansion.”

PWS

05-03-20

ANOTHER BLOW TO THE REGIME SCOFFLAWS, AS MORE WILL BE REVIEWED FOR RELEASE FROM THE GULAG: Judge Dana Sabraw, USDC SD CA, Orders Further Review, After Plaintiffs Show Undercount In Original DHS Affidavit Submitted To Court!

https://www.sandiegouniontribune.com/news/immigration/story/2020-04-30/judge-orders-review-for-release-of-ice-detainees-at-otay-mesa-detention-center

Kate Morrissey reports for the San Diego Union Tribune:

The facility’s warden had initially given the judge an undercount of how many detainees were at high risk of complications due to COVID-19

By KATE MORRISSEY

APRIL 30, 202012:04 PM

A San Diego federal judge ordered Immigration and Customs Enforcement to review for release a list of newly identified detainees at the Otay Mesa Detention Center who would be at high risk for serious health complications if they get COVID-19.

U.S. District Court Judge Dana Sabraw granted the American Civil Liberties Union’s request to create a subclass of people at high risk under the pandemic, which has spread widely within the facility. The judge made his decision after learning that the facility’s warden had undercounted the number of people in that category in his initial declaration for the case.

“That information is significant,” Sabraw told attorneys during a telephonic hearing Thursday. “It does change measurably the underlying facts and whether or not the petitioners are entitled to relief.”

A spokeswoman for CoreCivic, the private prison company that runs the facility, said that the initial report sent to the judge was compiled with data from ICE Health Service Corps, which provides the medical care at the facility, and the report “was made with the best available information we had from our partners at the time.”

. . . .

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

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

There was a time, long ago, when a Government agency’s submission of false, materially incomplete, or misleading information to a Federal Court would have earned sanctions up to and including threats of contempt from a U.S. District Judge. Sadly, bending the truth, omitting material information, and outright lies have become “the norm” for DHS and DOJ under Trump.

Indeed, the burden is now on the plaintiffs, often serving pro bono and stretched to the limit, to show and document for the courts each false, incomplete, or misleading affirmation from the Government. Against reason and the clear record over the past three years, Federal Courts continue to presume the proven unlikely — nay, likely impossible — that a regime led by a pathological liar and his toadies will provide them true, accurate, and complete information about anything!

Instead of asylum applicants being given “the benefit of the doubt,” as our law is supposed to require, that benefit of the doubt is now being given to an overtly bigoted and dishonest Executive who in no way has earned or deserved it. Everything has been turned upside down.

But, until the Article III Courts take actions to insure that this regime respects the integrity of the process, the practice of “lie, obfuscate, and mislead first and see if they catch you” will continue largely unabated. Vulnerable migrants aren’t the only victims here. Failing to force the regime to act in an honest, ethical, and professional manner in Federal litigation is eroding the integrity of the Article III Courts all the way up to the complicit Supremes.

Remember, several years ago, the DHS and DOJ lied to Federal Courts and the public about the existence of Sessions’s “child separation policy.” Two years later, they continue to feed erroneous information to the courts with impunity. But, who’s surprised when in the meantime the Supremes’ majority has sent such a powerful and consistent message that “Brown Lives Don’t Matter” and they won’t examine the truth or actual motivation behind any Executive attack on the rights, lives, and safety of migrants.

Here’s a report from a member of the NDPA and a Courtside reader on the front lines of the battle to save humanity: “[T]wo of our clients detained in Otay Mesa Detention Center were finally released after a Federal Judge issued a TRO. I am relieved. ICE has been unreasonable and in my opinion reckless with the lives of people in detention and even their own employees. . . . And the attorneys at the ACLU are the true heroes here and . . . students.”

Why is this abject failure of responsible Government and absence of powerful, coordinated, courageous judging that puts an end to these human rights abuses acceptable? Why isn’t our Supreme Court delivering a powerful message that Executive dishonesty, denials of due process, systemic detention abuses, and disregard of established human rights principles aren’t acceptable in 21st Century America? Why is “Dred Scottification” the new policy endorsed by the “JR Five” on the Supremes?

Until we get better Federal Judges willing to stand up to Executive abuses and a Congress that retakes its responsibility to legislate and oversee the Executive in the area of immigration and human rights, it will continue to fall to the private bar and NGO lawyers to force officials among our failed institutions in all three Branches to do their jobs in accordance with the law and the Constitution. That’s not the way it’s supposed to work. But, it’s the only way it does work in today’s America. Thank goodness for the (non-regime) lawyers!

Due Process Forever!

PWS

05-02-20

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

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

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

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

April 28, 2020 HUMAN RIGHTS

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

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

by Hon. Mimi Tsankov

Share this:

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

—Senator Sheldon Whitehouse

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

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

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

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

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

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

Thomas Cizauskas from Flickr

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

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

. . . .

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

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

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

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

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

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

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

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

PWS

05-02-20

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

Laura Lynch of AILA reports:

Hi all-

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

Philip Montante- Batavia NY

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

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

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

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

Laura A. Lynch, Esq.

Senior Policy Counsel

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

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

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

Due Process Forever! Star Chambers, Never!
P

PWS

05-02-20

NDPA NEWS: JUST IN: MORE GOOD VIBES FOR THE GOOD GUYS: US District Judge Vince Chhabria “Rips DHS A New One” Over Grossly Deficient Treatment Of Detainees In Gulag: DHS Intransigence “speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.”☠️🤮⚰️☠️🤮⚰️

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

Round Table Member Judge Ilyce Shugall & Genna Beier, Deputy Public Defender report:

Hi all,

I write with wonderful news from the Zepeda Rivas crew. Judge Chhabria granted our motion for provisional class certification and motion for temporary restraining order. See attached!

He found that “the plaintiffs have demonstrated an exceedingly strong likelihood that they will prevail on their claim that current conditions at the facilities violate class members’ due process rights by unreasonably exposing them to a significant risk of harm.”

He also faulted the government for failing to be ready with basic information about class members:

“[C]ounsel for ICE asserted that it will take a significant amount of time for the agency to prepare a list of detainees with health vulnerabilities because it is ‘burdensome.’ The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.” (emphasis added). ZING!!

He ordered ICE to provide records. Then, we will begin a process of individualized “bail” applications (“[T]his Court—likely with the assistance of several Magistrate Judges—will consider bail applications from class members over a roughly 14-day period.”). We don’t know yet what that process will look like, and we’ll have an opportunity to discuss it at a case management conference tomorrow. We’ll update you, of course.

If you haven’t already, please fill out the attached form for your clients! At tomorrow’s hearing want to be able to give the judge a survey of the individuals for whom we have clear release plans, for example. (Tips: try to use Adobe; if all else fails, save as PDF and email to me).

Lastly, we’ve got an amazing team of ACLU, SFPD, LCCR and UC Berkeley Law School people ready to take calls from unrepresented people in detention to start gathering info for bail applications. Please tell your clients to spread the following Lyon pin to others in their dorm who do not have attorneys to fill out these forms for them.

NUMBER TO CALL FOR UNREPRESENTED FOLKS: 7654

Folks will be on shifts taking calls from 9:00 am to 9:00 pm. Spread the word!

Genna

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

Congratulations, Team!👍🏼👍🏼👍🏼👍🏼👍🏼

Thank goodness! Another courageous U.S. District Judge refusing to “buy into” the regime’s disingenuous, immoral “no problem until the bodies start piling up, it’s only the lives of migrants, not ‘real humans’” approach.

Imagine what would happen if all Federal Judges were willing to act on their oaths of office and uniformly reject all aspects of the regime’s unlawful, unconstitutional “Dred Scottification” program directed at “deterrence through death, disease, and dehumanization.” What would it take? What if the families of Federal Judges were treated with the same basic disregard for due process, life, health, and human dignity as the regime inflicts on migrants? What if the corrupt officials carrying out these programs and the lawyers who defend them were actually held accountable for their actions by the Federal Courts rather than largely being given “free passes”?

What if we had a Government that actually respected our Constitution rather than seeking to shred it?

Due Process Forever!

PWS

05-01-20

REGIME SCOFFLAWS STUFFED AGAIN: 7th Cir. Blasts Barr’s Bogus Battle Bashing Local Law Enforcement In Chicago, Other Cities — Unconstitutional! — Nationwide Injunction Affirmed — “But states do not forfeit all autonomy over their own police power merely by accepting federal grants.“

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca7-on-byrne-jag-grant-conditions-chicago-v-barr

Dan Kowalski reports from LexisNexis Immigration Community:

CA7 on Byrne JAG Grant Conditions: Chicago v. Barr

Chicago v. Barr

“We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny. … Accordingly, we affirm the grants of declaratory relief as to the declarations that the Attorney General exceeded the authority delegated by Congress in the Byrne JAG statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching the challenged conditions to the FY 2017 and FY 2018 grants, and that the Attorney General’s decision to attach the conditions to the FY 2017 and FY 2018 Byrne JAG grants violated the constitutional principle of separation of powers. In light of our determination as to the language in § 10153, it is unnecessary to reach the constitutionality of § 1373 under the anticommandeering doctrine of the Tenth Amendment. We affirm the district court’s grant of injunctive relief as to the application of the challenged conditions to the Byrne JAG grant program-wide now and in the future, which included enjoining the Attorney General from denying or delaying issuance of the Byrne JAG award to grants in FY 2017, FY 2018, FY 2019 and any other future program year insofar as that denial or delay is based on the challenged conditions or materially identical conditions. We remand for the district court to determine if any other injunctive relief is appropriate in light of our determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees. Finally, because the injunctive relief is necessary to provide complete relief to Chicago itself, the concern with improperly extending relief beyond the particular plaintiff does not apply, and therefore there is no reason to stay the application of the injunctive relief.”

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

The complete 111-page decision is available at the above link.

The 7th Circuit Panel was BAUER, MANION, AND ROVNER, Circuit Judges. The opinion is by Judge Rovner. Judge Manion filed a separate opinion concurring in the legal analysis, but dissenting from the nationwide scope of the injunction.

The 7th Circuit strongly upholds the Constitutional separation of powers and local jurisdictions’ rights to police in a manner that protects their local communities. Compare this with the obsequious kowtowing to Executive abuses by the Second Circuit in State of New York v. Barr, https://immigrationcourtside.com/2020/02/27/2d-cir-to-ny-six-other-so-called-sanctuary-states-tough-noogies-trump-rules/

Some Federal Courts stand up for our rights in the face of Trump’s tyranny; others “roll over.” History will be their judge!

That being said, I wouldn’t be surprised to see the “JR Five” on the Supremes — who seldom see a White Nationalist abuse of authority picking on immigrants that they aren’t willing to validate — will “torque the law and the facts as necessary” to further the regime’s scofflaw, xenophobic agenda.

History eventually will catch up with them too. History recognizes neither life tenure nor “absolute immunity.”

Due Process Forever!

Continue reading REGIME SCOFFLAWS STUFFED AGAIN: 7th Cir. Blasts Barr’s Bogus Battle Bashing Local Law Enforcement In Chicago, Other Cities — Unconstitutional! — Nationwide Injunction Affirmed — “But states do not forfeit all autonomy over their own police power merely by accepting federal grants.“

COMING ATTRACTION: Hear Round Table “Fearless Knightess” ⚔️🛡 Hon. Susan Roy On “NJ Insider — Politically Direct Podcast” — Thursday, April 30, @ 9:00 PM EDT!

Here’s the link:

http://www.insidernj.com/podcast/politically-direct-episode-92-guest-susan-roy-former-immigration-judge/

Podcast: Politically Direct Episode 92 With Guest Susan Roy, Former Immigration Judge

By Insider NJ | April 29, 2020, 12:45 pm

Coming up on Thursday Night April 30th and LIVE at 9:00PM, I welcome Former Immigration Judge Susan Roy to Politically Direct. We will discuss her time working in Federal Immigration Court, the challenges of Immigration Law, the current political climate, the impact of COVID-19 on current immigration cases and much more.

I am proud to partner with Insider NJ and host this weekly informative podcast.

Feel free to call in and chat with us during the program.

818-572-8032

Tell your family and friends about this upcoming episode.

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

Three cheers for Sue!

Due Process Forever!

PWS

04-20-20

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