🛡Round Table of Former Immigration Judges – Page 4

😎🗽⚖️ HAPPY THANKSGIVING FROM COURTSIDE & THE NDPA!

Happy Thanksgiving Vegan Turkey
By Cathy Schmidt

Today’s Thanksgiving message from Elliott Kirschner & Dan Rather @ Steady:

https://open.substack.com/pub/steady/p/happy-thanksgiving?r=330z7&utm_medium=ios&utm_campaign=post

Happy Thanksgiving

Gratitude for so much

Dan Rather

and

Elliot Kirschner

13 hr ago

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Happy Thanksgiving
Illustration: Daria Mikhaylova

Illustration: Daria Mikhaylova

Happy Thanksgiving

Gratitude for dreams, learning, and our diversity.

For our country’s most noble ideals.

For science.

Appreciation for the beauty of our planet.

For the wonders of music.

For the mysteries of our consciousness.

Recognition of the persistence of injustice.

Of the struggles for so many.

Of the contagion of hate.

Indebtedness to the support of friends and family.

To the inspiration of teachers.

To all those who refuse to look away from need.

Understanding that civic engagement requires ongoing effort.

That suffering should not be accepted.

That divisions induce weakness.

Praise for the poets who help us understand life, death, and everything in between.

For those whose courage protects us.

For those who came before us determined to make the world a better place.

Blessings for the children who can fix our damaged planet.

For the helpers who provide shoulders on which to lean.

For the leaders who refuse to abandon hope.

A deep and heartfelt thankfulness to all of you who have created a community of care, support, and steadiness.

Note: If you are not already a subscriber to our Steady newsletter, please consider joining us. And we always appreciate you sharing our content with others and leaving your thoughts in the comments.

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Thankful for:

The courage, determination, skills, and humanity of migrants of all kinds who enrich our nation with their presence;

Family, friends, and colleagues;

Pets, particularly Smokey the Cat, “Dunky Dog,” his friends ( canines & humans) from the “7 AM, 711 Dog Club,” and the extended “Schmidt Family Menagerie;”

My wonderful colleagues @ The Round Table, AYUDA, Georgetown Law, and the rest of the NDPA for their tireless efforts to guarantee due process and fundamental fairness for all!

🇺🇸Happy Thanksgiving and Due Process Forever from Courtside!

PWS

11-24-22

🇺🇸🦸🏻‍♀️⚖️🗽👩🏻‍⚖️ PROFILE IN GREATNESS! — Kathleen Guthrie Woods Sits Down With One Of America’s Most Consequential Jurists, NDPA Hall-of-Famer 🥇 Judge (Ret.) Dana Leigh Marks On Leading & Inspiring From the Gritty Trenches Of American Justice & Her Exciting New Role As “NanaDana!” 🥰

Hon. Diana Leigh Marks — Hon. Dana Leigh (“NanaDana”) Marks
U.S. Immigration Judge (Ret.)
San Francisco Immigration Court
Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”

https://www.sfbar.org/sfam/q3-2022-unpacking-the-legacy-of-judge-dana-leigh-marks/

By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”

Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.

Who is Judge Marks, and how did she positively influence and impact so many lives?

. . . .

Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.

. . . .

“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.

“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”

“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”

*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).

Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).

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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!

Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.

I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.

As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!

As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!

Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”

We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!

Due Process Forever! 🗽😎⚖️👩🏻‍⚖️

Your friend & colleague, forever, ❤️

PWS

11-22-22

🏴‍☠️☠️🤮 CONVENTION AGAINST TORTURE (“CAT”) — For More Than Two Decades, The BIA Has Let Stand Its Legally Wrong & Highly Misleading “Precedent” Matter of S-V- — Now, “Sir Jeffrey” Chase Of The Round Table 🛡⚔️ Tells You How To Use The Real Law To Force Garland’s Scofflaws To Follow The Rule Of Law In A Failed System!

https://www.jeffreyschase.com/blog/2022/11/17/understanding-government-acquiescence

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Understanding Government Acquiescence

I would like to discuss a concept related to asylum, involving protection under Article 3 of the U.N. Convention Against Torture (commonly referred to as “CAT” for short). Although lacking the benefits afforded to those granted asylum or admitted as refugees, the importance of CAT as a protection from deportation has increased in recent years due to the complex nature of current asylum claims, which require greater effort to interpret causation than claims that were more commonly decided decades ago.

Whereas asylum requires a connection between the persecution and the applicant’s race, religion, nationality, membership in a particular social group, or political opinion, CAT protects those who are at risk of torture for any (or no) reason. CAT therefore can (and has) saved lives where the person at risk could not demonstrate to the adjudicator’s satisfaction a sufficient connection to one of the five mandatory asylum grounds.

While not requiring specific causation, CAT does require that the torture be “by, or at the instigation of, or with the consent or acquiescence of, a public official…”1 When (as is often the case) the torturers are a gang or drug cartel, what is required of an applicant to establish government acquiescence?

According to federal regulations, “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”2 Thus, the regulations make it clear that acquiescence is a two-step test for (1) awareness, and (2) breach of responsibility to intervene.

Back in 2000, the BIA addressed the meaning of “acquiescence” in a precedent decision, and managed to get it very wrong. In its en banc decision in Matter of S-V- , the majority defined “government acquiescence” as a government’s willful acceptance of the torturous activity.3 How it managed to look at the above two-step test and come up with “willful acceptance” (which, incidentally, is only one step) is anyone’s guess.

Not surprisingly, the Board’s standard was universally panned by the circuit courts. With the recent decision of the First Circuit in H.H. v. Garland 4, nine circuits have now outright rejected the BIA’s take as overly restrictive, holding that the proper test is satisfied where the government in question remained “willfully blind” to the commission of torture. The remaining two circuits, while not directly overruling the Board’s take, have nevertheless applied the “willful blindness” standard. No circuit has deferred to the BIA’s interpretation.

However, until just recently, only one circuit – the Second – clarified that acquiescence requires a two-step test as described above. The remaining circuits were content to correct the language of the Board’s one-step standard from “willful acceptance” to one including “willful blindness” and then leave it at that.

Last year, Prof. Jon Bauer at the Univ. of Connecticut Law School wrote an excellent article that did a wonderful job of explaining the proper standard and the shortcomings of existing case law on the topic.5 I believe that Prof. Bauer’s article (available at the above link) should be required reading for Immigration Judges.

In summary, Bauer’s article flagged several flaws in the common view of acquiescence. The first is the mistaken belief that “willful blindness” is the entire test for acquiescence. Bauer points out that the circuit courts have held that the “awareness” step (step one) may be met either through a government’s willful blindness or through its actual awareness. But willful blindness is neither an absolute requirement nor a minimum standard for establishing both awareness and breach of legal duty elements; it simply expands the manner in which the awareness prong may be satisfied.

Importantly, in most cases, actual awareness can be established without the need to rely on a government’s willful blindness. As Bauer points out in a footnote, at least two circuits recognize government awareness as being satisfied where the government is “aware that torture of the sort feared by the applicant occurs.”6 In other words, awareness doesn’t require the government to have specific knowledge of a plan to torture the CAT applicant; it is enough that ts agents are aware that, e.g., MS-13 is engaging in this sort of conduct within the country to satisfy the awareness prong.

Bauer additionally emphasized that acquiescence remains a two-step test, and that “willful blindness” is relevant to only the first step. The standard for satisfying step two, the breach of duty to intervene, remains a blank slate. Neither the BIA nor the circuit courts have stated what is required to establish a likelihood that the government will breach its responsibility to intervene.

Bauer points out that the confusion concerning willful blindness has caused some adjudicators to view any action (no matter how ineffectual) by the government in question as precluding a finding of acquiescence, regarding even a minimal response as proof that the government was not being “willfully blind” to the torture. But as Bauer notes, willful blindness has nothing to do with the obligation to intervene. Once awareness is established (either through actual awareness or willful blindness), the focus turns to the separate question contained in step two of whether the duty to intervene was breached.

As to the breach prong, Bauer opined that the test applied under international law, requiring states “to exercise ‘due diligence’ to prevent, investigate, prosecute, and punish acts of torture by non-State actors,” is the correct one for adoption as the domestic standard for step two. Bauer explains how this interpretation is consistent with the CAT’s text and drafting history, as well as the legislative history of US ratification and implementation of the treaty.7

The confusion cited by Bauer as to the proper standard to be applied is exacerbated by the fact that the Board has never vacated its precedent decision in S-V- setting out the incorrect standard. And it was that failure to fix what was obviously broken that led to the First Circuit’s recent lesson on the topic in H.H. In that case, an Immigration Judge denied CAT by applying the Board’s incorrect “willfully accepting” standard. And perhaps because the case arose in the First Circuit, which at the time had yet to directly refute the Board’s approach in a published decision, the BIA affirmed the Immigration Judge’s decision applying the erroneous standard.

Fortunately, the petitioner in that case was represented on appeal to the First Circuit by SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire. Petitioner’s counsel did an excellent job of explaining the state of confusion on the topic, and of presenting the clear solution in line with Bauer’s approach. Counsel also enlisted the Round Table of Former Immigration Judges to weigh in on the topic with an amicus brief drafted for us by the law firm of Cooley LLP.8

The result was an excellent published decision deserving of our attention. First, the circuit panel found that the BIA “failed to meaningfully address H.H.’s alternative theory that MS-13 itself is a de facto state actor.” The court found that in simply labeling the argument “unpersuasive,” the Board provided an insufficient degree of analysis to facilitate appellate review. That argument remains one that practitioners should continue to raise in both the CAT and asylum contexts.9 And practitioners may now wish to cite to the language in H.H., which is the first published decision to demand a detailed explanation from adjudicators as to why they find such argument unconvincing.10

In addressing Matter of S-V-, the court joined the list of circuits rejecting the Board’s standard. Specifically, the court found the term “willful acceptance” to clash with Congress’s clear intent for awareness to be satisfied through both actual knowledge and willful blindness. As the court pointed out, willful acceptance “necessarily includes knowledge of the matter one is ‘accepting,’ and excludes the concept of willful blindness.”

Finding that the BIA applied an improper standard of review by treating the acquiescence issue as clearly factual, when the inquiry regarding “‘whether the government’s role renders the harm ‘by or at the instigation of or with the consent or acquiescence of a public official,”’ is legal in nature and is subject to de novo review,” the court remanded for the Board to consider under a de novo review standard “the question of acquiescence, understanding that a showing of willful blindness suffices to demonstrate an “awareness” of torture under the CAT.”

However, the court did not stop there. It continued on to the question of the breach of obligation, observing that the regulations set out a two-step inquiry, yet noting that “most of the courts that have adopted the willful blindness standard have not consistently distinguished between the ‘awareness’ and ‘breach of duty’ steps.”

On remand, the court left it to the Board to address the proper standard for the breach requirement in the first instance. But the court advised “that we join the Second Circuit in expressing skepticism that any record evidence of efforts taken by the foreign government to prevent torture, no matter how minimal, will necessarily be sufficient to preclude the agency from finding that a breach of the duty to intervene is likely to occur….Rather, on remand, the agency’s determination about breach of duty, to the extent such a determination is necessary, must be made after carefully weighing all facts in the record.”11

It is puzzling why it took 22 years for the Board to be given that direction by a circuit court. And from experience, it will take the Board some time to respond in the form of a precedent decision. As many lives will be on the line in the meantime as claims are heard by Immigration Judges (and in some instances by USCIS asylum officers, under new procedures for claims arising at the border), those deciding CAT cases are respectfully urged to reference the full decision in H.H. as well as Prof. Bauer’s article, which practitioners should also file, cite, and discuss in their briefs and arguments. Litigants and judges should work together towards getting this important standard right. Lives depend on our doing so.12

Copyright 2022 Jeffrey S. Chase. All rights reserved.

Notes:

8 C.F.R. § 1208.18(a)(1).

8 C.F.R. § 1208.18(a)(7).

22 I&N Dec. 1306 (BIA 2000) (en banc). I am happy to announce that all three members of the Round Table of Former Immigration Judges who participated in that decision disagreed with the majority’s interpretation of acquiescence in separate opinions. See Concurring Opinion of Board Member Gustavo D. Villageliu; Concurring and Dissenting Opinion of BIA Chair Paul W. Schmidt, and Dissenting Opinion of Board Member Lory D. Rosenberg.

Nos. 21-1150, 21-1230; ___ F.4th ___ (1st Cir. Oct. 21, 2022).

J. Bauer, “Obscured by Willful Blindness: States’ Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture,” 52 Col. Hum. Rts. L. Rev. 738 (2021).

Id. at 749, fn. 34 (quoting Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020) (citing two earlier decisions in agreement); and additionally citing Myrie v. Att’y Gen., 855 F.3d 509, 518 (3d Cir. 2017) (similar statement).

Id. at 750.

The Round Table expresses its appreciation to attorneys Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, and Samantha Kirby of Cooley LLP for expressing our arguments so articulately in their brief on our behalf. Our brief can be read here.

For an overview of this topic in the asylum context, see my 2018 blog post on 3rd-Generation Gangs and Political Asylum.

For persuasive presentations of the de facto state actor argument, see Deborah E. Anker, Law of Asylum in the United States (Thomsen Reuters) at § 4:9; and Anna Welch and SangYeob Kim. “Non-State Actors ‘Under Color of Law’: Closing a Gap in Protection Under the Convention Against Torture,” 35 Harvard Hum. Rts. J. 117 (2022).

The Second Circuit case cited to was De La Rosa v. Holder, 598 F.3d 103, 110-111 (2d Cir. 2010) (holding that the preventative measures of some government actors does not foreclose the possibility of government acquiescence).

My sincere thanks to Jon Bauer and SangYeob Kim, who provided valuable input in reviewing this article.

NOVEMBER 17, 2022

Republished by permission.

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I’m proud to say that, as kindly noted by “Sir Jeffrey” in FN 3, Round Table ⚔️🛡 members, Judge Gustavo D. Villageliu, Judge Lory D. Rosenberg, and I, each filed separate opinions distancing ourselves from various aspects of our majority colleagues’ specious, and eventually proved to be wrong, views in Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000) (en banc). My BIA colleagues Judge John Guendelsberger and Judge Anthony C. Moscato also joined my separate opinion, in addition to Judges Villageliu and Rosenberg.

As a hint to what’s wrong with this politically-biased “charade of a court,” operating within a prosecutorial agency, I note that all of us except Judge Moscato were ultimately “exiled” from the BIA by John Ashcroft. Our “offense” was doing our jobs by standing up in dissenting opinions for correct interpretations of law and the legal and constitutional rights of migrants in the context of a “go along to get along” BIA majority who too often chose job security over justice for the individuals coming before us.

That a number of our dissents, particularly Judge Rosenberg’s, were prescient as to what Federal Circuit Courts and the Supremes would hold, and also predicted some of their vociferous criticisms of EOIR’s poor performance under Ashcroft, are also telling of the lack of legitimacy and impartiality that Ashcroft ushered in. That has continued to plague EOIR over subsequent Administrations of both parties, including the present Administration.

In my conclusion, I highlight the majority’s unseemly haste to “get to no, with the interpretation least favorable to the respondent.”

The issue whether the respondent’s situation fits within Article 3 of the Convention Against Torture requires factual determinations about conditions in Colombia and the respondent’s own situation considered in the con- text of international legal principles. We have little United States jurisprudence to guide us in this area. Before deciding such important and potentially far-reaching issues, we should have a fully developed record and the benefit of the Immigration Judge’s informed ruling on the positions of the parties.

The respondent has established a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues at a hearing under Matter of L-O-G-, supra. His motion to reopen and remand should therefore be granted. Consequently, I respectfully dissent from the decision to deny the motion.

Over the years, the pro-government/anti-immigrant bias and “haste makes waste gimmicking” has progressively gotten worse at the BIA, culminating in the disgraceful “packing” of the BIA with notorious asylum deniers and “hard liners” during the Trump Administration.

Poll human rights experts on how many of the Trump holdover BIA judges would be considered “leading asylum experts?” How many have ever represented an asylum seeker in Immigration Court? So, why would this body have a “stranglehold” over American asylum law and be given deference by the Article IIIs to boot?

One would have expected Garland to address this obviously unacceptable situation on an urgent basis by reassigning most holdover BIA Appellate Judges and replacing them with real, expert judges from the deep private sector talent pool. EOIR needs qualified appellate jurists who will correct the many mistakes of the past, change the one-sided, overwhelmingly anti-immigrant and often misleading “precedential guidance,” enforce some consistency, eliminate disreputable “asylum free zones” pretending to be “courts,” and lead EOIR (and indeed the entire Federal Judiciary) into high-quality, best-scholarship, 21st century jurisprudence.

That means a body of scholarly, practical, transparent precedents that properly guide and advise Immigration Judges on the correct and efficient adjudication of many cases stuck in this dysfunctional system where individuals deserve to win. Instead, Garland has allowed EOIR to continue its downward spiral with sloppy work, bad decisions, and incompetent judicial administration in a system where all of these problems are potentially life threatening. Not surprisingly, this failure to fundamentally reform and improve EOIR has also led Garland to increase the backlog to a jaw-dropping almost two million cases.

Lack of judicial excellence, grotesque inconsistencies, worst practices, and administrative incompetence have also unfairly, unprofessionally, and unnecessarily increased the difficulty and already sky-high stress levels for immigration practitioners, many serving the system in a pro bono or low bono capacity. With lack of adequate immigration representation one of the festering problems undermining our entire American justice system, Garland’s poor stewardship over EOIR can (charitably) be described as totally unacceptable.

So, in answer to Jeffrey’s question as to why after 22 years legally wrong precedents still rule at EOIR and correct guidance remains elusive, I have the answer. Because, Merrick Garland has ignored the advice of experts and failed to make achievable, long-overdue reforms and critical upgrading of judicial quality at EOIR.

That’s a growing cancer on our justice system that won’t be cured without better, due-process-dedicated, leadership — at all levels!

🇺🇸 Due Process Forever!

PWS

11-19-22

🇺🇸⚖️🗽👩🏻‍⚖️ ROUND TABLE WEIGHS IN @ SUPREMES ON UNCONSTITUTIONAL VAGUENESS OF “CRIME INVOLVING MORAL TURPITUDE!” — With Lots of Help From Our Friends @ Georgetown Law Appellate Courts Immersion Clinic! — Daye v. Garland

Introduction and Summary of Argument

This brief presents amici’s practical perspective on why the Immigration and Nationality Act’s provision for removal based on a conviction for a “crime involving moral turpitude” is void for vagueness. Section 1227(a)(2)(A) combines the imprecision of the phrase “moral turpitude” with the indeterminacy of applying that phrase to a hypothetical set of facts

1 Counsel of record for all parties received notice of amici’s intent to file this brief at least ten days before its due date. The parties have consented to this filing. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief.

2

under the categorical approach. The result is a provision so vague that adjudicators cannot agree on how to conduct the inquiry and frequently reach inconsistent results.

The Act charges immigration judges with determining which crimes involve “moral turpitude.” Though the statute provides no definition, in 1951, this Court held that the “language conveys sufficiently definite warning as to the proscribed conduct.” Jordan v. De George, 341 U.S. 223, 231-32 (1951). But time has disproved that understanding. The usual “consistency [that] can be expected to emerge with the accretion of case law,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550 (3d Cir. 2018), has not materialized. Indeed, the typical sources of clarity—the Board of Immigration Appeals and the courts of appeals—have produced more questions than answers. Whose morals matter? How should judges discern what those morals are? What course should judges follow when moral views conflict? How do they account for changes in views over time? Immigration judges have no way to know. And the uncertainty that the statute’s vague words create left amici with no guide except their own moral intuitions.

To this ambiguity, add that, under the categorical approach, immigration judges do not evaluate the actual conduct engaged in by the noncitizen before them. Instead, they must assess the moral implications of a theoretical set of facts—the “least culpable” means of committing the crime in question. The hypothetical nature of this mode of analysis exacerbates the underlying vagueness of the statutory phrase “crime involving moral turpitude.”

3

Recently, this Court has struck down statutory provisions that suffered from analogous uncertainty, holding each unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Section 1227(a)(2)(A) should suffer the same fate.

The real-world effects of Section 1227(a)(2)(A)’s vagueness confirm this conclusion. Attempts to curtail the provision’s arbitrariness by articulating standards have failed. The Board and the courts of appeals have repeatedly but unsuccessfully tried to craft a workable set of rules for identifying which crimes involve moral turpitude. Their efforts have instead produced a series of non-dispositive, ad hoc tests that generate inconsistent and arbitrary results. Confusion abounds in immigration courts and in Article III courts alike, with widespread disagreement over whether a given crime involves moral turpitude. Among other unexplainable outcomes, the courts of appeals part ways on whether crimes such as making a terroristic threat or deceptively using a social security number involve moral turpitude. Amici were required to sort through this morass, unsure of which of the growing list of ad hoc tests applied or how to deal with the conflicting results. Their experiences confirm that the phrase “moral turpitude” is too vague to govern the “particularly severe ‘penalty’” of removal. Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

For these reasons, this Court should grant review and reverse.

Read the complete brief here:

Daye Amicus Brief To File 11.14.22

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For over 70 years, Federal Judges from the Supremes on down have turned a “blind eye” to our Constitution and substituted their subjective views on morality and immigrants for the rule of law. Our Round Table says it’s high time to stop! ⚔️🛡

Thanks again to the superstars Esthena L. Barlow, Brian Wolfman, Counsel of Record Madeline Meth, and the rest of the “Youth Brigade of the NDPA” over @ Georgetown Law!

🇺🇸 Due Process Forever!

PWS

11-16-22

☠️ GARLAND’S QUASI-JUDICIAL TORTURE CHAMBERS — FROM COAST TO COAST, EOIR APPLIES WRONG LEGAL STANDARDS, IGNORES EVIDENCE IN EFFORT TO ILLEGALLY SEND PEOPLE TO TORTURE!

Star Chamber Justice — If he survives Garland’s EOIR, this guy faces more torture if wrongfully removed to torture elsewhere. “Justice”
Star Chamber
Style

“Sir Jeffrey” Chase reports on H.H. v. Garland, a case in which the Round Table filed an amicus brief in behalf of the respondent. Many thanks to our friends Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on the brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.

H.H. V. Garland

For the reasons detailed above, we conclude that the BIA erred by: (1) applying the incorrect standard of review to uphold the IJ’s denial of CAT relief as to Honduras, in a misguided effort to accommodate the IJ’s error of law in requiring a showing of willful acceptance rather than willful blindness; (2) improperly failing to address H.H.’s argument that he would likely be tortured by or at the instigation of Honduran officials; and (3) failing to meaningfully address H.H.’s argument that MS-13 members may act under color of law.21 Accordingly, we grant the petition for review, vacate the BIA’s decision insofar as it denied H.H. deferral of removal to Honduras, and remand the case for further proceedings consistent with this opinion.

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Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit.

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-cat-guatemala-de-leon-lopez-v-garland#

“Risvin Valdemar De Leon Lopez (“De Leon”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.”

[Hats off to Karla Kraus!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Almost every time I “feature” the ongoing legal and operational disaster @ EOIR, Garland furnishes me with concrete examples. https://immigrationcourtside.com/2022/10/22/%e2%98%a0%ef%b8%8f%e2%9a%b0%ef%b8%8f%f0%9f%92%80garlands-star-chambers-slow-violence-on-people-of-color%f0%9f%a5%b5-bias-bad-law-bungling-bureaucracy/

These are two “doozies” from last Friday!

These aren’t “minor bureaucratic matters,” no matter how much Garland and his “clueless crew” over @ DOJ might want to treat them that way and hope they will go away! They won’t! Not if the thousands of us involved in the due process, fundamental fairness, and racial justice for all movement have anything to say about it (e.g., the “NDPA”)!

And we will continue to speak out against the parody of justice @ Garland’s EOIR! It’s a disingenuous and disgraceful performance by a Democratic Administration that will have “down the line” consequences!

While the Trump Administration admittedly left EOIR in complete shambles, that doesn’t excuse the Biden Administration’s failure to fix it. It’s not “rocket science!” But, there is no way that the “Clown Show” 🤡 that Garland has chosen to run and staff EOIR (many inexplicably “held over” from the Sessions/Barr debacle) can fix it!

These are literally life and death cases in which Garland’s “faux expert” BIA “pretzels” the law, misconstrues facts, and “selectively reads” records to reach wrong results that deny protection and decree deportation! How is this acceptable performance from any tribunal, let alone one that is supposed to insure justice for those whose lives are on the line? How is this acceptable performance from a Democratic Administration that claimed fealty to human rights and racial justice, but takes neither seriously when it comes to EOIR?

There are plenty of “practical scholar experts” out here in the non-governmental sectors who would make much better appellate and trial judges, and administrators, than many of those Garland is inflicting on migrants and their attorneys.

What’s wrong with the Biden Administration? What’s “right” about failed justice @ Justice?”

The poor performance of Garland as the “steward” of the Immigration Courts at EOIR is a threat to humanity, democracy, and a colossal waste of judicial and litigation resources at all levels of our justice system!

Alfred E. Neumann — Maybe Merrick Garland SHOULD worry about running “America’s worst courts” and inflicting life-threatening injustice on his fellow humans!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-23-22

🤮 GARLAND’S EOIR HITS ANOTHER LOW! — Local Immigration Judges Barred From Participating In CLE Event! — For No Particular Reason! — The Round Table 🚀 ⚔️ Again Steps Into The Breach Caused By EOIR’s Failure!

By Paul Wickham Schmidt

Courtside Exclusive

Oct. 4, 2022

Immigration Judges as Galley Slaves — Garland’s bureaucratic minions keep close watch over their “captive” Immigration Judges.
“Galley Slaves”
Public Realm

As one of my esteemed colleagues says, “You can’t make this stuff up!”

I got this message from one of my Round Table colleagues involved in planning in a well-respected CLE event where local Immigration Judges had been invited to participate. “Things [for local IJ’s participation in CLE conference] were going pretty smoothly until EOIR Ethics came back with a NO. NO, the Judges cannot participate, and NO we’re not going to tell you why.”

One Round Table member noted: “As [Hon. “Sir”] Jeff [Chase] has said, our main legacy will be to educate the next generation of immigration lawyers.”

“EOIR in Exile” (“a/k/a “The Round Table”) appears to be “the only game in town” when it comes to educating practitioners about what really happens in Immigration Court.

Under Garland, EOIR inflicts unprofessional and humiliating treatment not only on the parties and lawyers appearing it, but also on its own judges!

Way back in the “good ol’ days @ EOIR,” Immigration Judges were actually allowed, even occasionally encouraged, to participate in CLE and other educational events. Of course, advance permission, at several levels, extensive disclaimers, and an occasional dose of censorship (had to stick to the “party line” – no criticism of EOIR) were part of the equation. That was enough to discourage a number of my judicial colleagues from engaging in public speaking. But, I was one of those who accepted as many invitations as possible.

I remember being on a panel with a U.S. District Judge. I delivered my “standard elaborate disclaimer” — basically providing “plausible deniability” for my remarks for everyone in the universe. Then, the USDJ got up and said something like this: “I asked nobody’s permission to be here today, although I did notify the Chief Judge of my whereabouts as a matter of professional courtesy.” That summed up the difference between “independent” and “captive” judges, and why an independent Article I Immigration Court is long, long overdue. But, in the meantime, there is no excuse for the ongoing and worsening disorder and dysfunction in Garland’s “courts!“

🇺🇸 Due Process Forever!

PWS

10-03-22

🆘 SOS FROM ROUND TABLE’S 🛡 ⚔️ JUDGE SUE ROY: COMPLETE DUE ROCESS MELTDOWN @ EOIR NEWARK, AS GARLAND’S LEADERSHIP CONTINUES TO FAIL! ☠️☠️ — Garland Has Managed To Bring AILA & ICE Together In Outrage Over His Dangerous, Gross Mismanagement Of The Immigration Courts!🤯

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

My colleague Sue writes:

Hi,

First, can someone please share with the RT as a whole? I can’t do it from where I am at the moment.

Second, yes, believe it or not, Newark EOIR is implementing a “policy” (if you can call it that, since it hasn’t been written anywhere) starting Monday, October 3, 2022, that ALL DHS and Respondents’ attorneys must appear IN PERSON for almost EVERY case, including master calendar hearings. Their stated reason? “Webex bandwidth issues.” This is the Court that started Webex. This is the Court that caused the death of at least one person (and in fact 4 people ultimately died) and the severe illness of many more, because of its court policies at the beginning of the pandemic. And Newark EOIR’s completely unsafe and short-sighted policy just last year is what generated the lawsuit filed by AILA-NJ against EOIR.

The OPLA attorneys’ union and AILA-NJ have issued a JOINT press release (which is attached) after a joint letter to David Neal unfortunately did not resolve the issue. The NJ State Bar Association has also submitted a letter to Director Neal. (Also attached).

In fact, the Newark EOIR policy flies in the face of the DM issued by Director Neal himself regarding the use of WebEx throughout the nation’s immigration courts.

Some Newark IJs have already begun denying ALL WebEx motions for both DHS and Respondents’ attorneys, regardless of the reason behind the motion (such as, undergoing chemotherapy; receiving treatment for heart conditions; or having oral argument scheduled before the U.S. Court of Appeals on the same day, just to give some examples).

In any event, feel free to share widely and publicly. The Chair of AILA-NJ this year is Jason Camilo, who I have cc’d on this email just so he is aware.

Happy Friday!

Sue

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Here’s the joint letter letter from AILA & ICE:

PROSECUTORS AND ATTORNEYS

CALL FOR CONTINUATION OF VIRTUAL HEARINGS AND OPPOSE CHANGE IN POLICY IN NEWARK IMMIGRATION COURT

New Jersey – Both AILA NJ and AFGE Local 511 (ICE Professionals Union) call on the Newark Immigration Court, part of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), to continue to allow virtual hearings for all attorneys and immigrants, in all cases, without exception. These attorneys are opposed to the recently- announced policy of the Newark Immigration Court requiring all attorneys to either return in person to hearings beginning on October 3, 2022 or to seek waiver of in-person appearance for good cause. Public safety requires virtual hearings, especially for routine preliminary hearings that generate large groups of people in small courtrooms.

This new policy goes far beyond the policies of all other New Jersey court systems, from municipal courts, State courts, and federal courts, and puts everyone at risk—prosecutors, attorneys, court staff, immigrants, and the public at large. Federal and New Jersey State Courts are still operating almost entirely virtually, with exceptions only for criminal jury trials and some other specific proceedings. “EOIR’s new policy of making everyone return to the courtroom in person is dangerous and unjustified,” says Jason Scott Camilo, Chair of AILA NJ. Newark EOIR is not just requiring in-person appearances for contested individual hearings; it is requiring attorneys to appear in person at master calendar hearings as well, which can involve 50-60 cases per judge, per courtroom, every morning and afternoon. Thus, literally hundreds of people will once again be forced into small, unventilated courtrooms and narrow hallways every single day.

Sadly, this is not the first time Newark EOIR has tried to force prosecutors, attorneys, and the public into the courtroom during the pandemic. Numerous people contracted COVID-19 as a result of attending immigration court proceedings in March 2020. One well-respected AILA NJ member passed away as a result, and several people became seriously ill. Other federal workers at the same federal building have also succumbed to the disease. This is in addition to those who suffered and still suffer from long COVID complications.

Despite this, Newark EOIR compelled people back into courtrooms in July 2020. New Jersey immigration attorneys and the New Jersey Chapter of American Immigration Lawyers Association, (AILA NJ), sued EOIR on July 31, 2020 in Federal District Court, New Jersey,

seeking protection from EOIR!s first attempt compelling attorneys to appear in person during the pandemic. Due to this suit, Newark EOIR committed to providing attorneys with remote videoconferencing for the duration of the pandemic and to troubleshoot and address any glitches or interruptions in its use. All Immigration Courts nationwide soon adopted internet based hearings as the default for cases.

Since August 2020, prosecutors, attorneys, and immigrants have been appearing remotely, and, according to polling conducted by AILA NJ, the vast majority of internet-based hearings are proceeding without issue. Secretary Becerra of the United States Health & Human Services recently announced the continuation of the nationwide public health emergency on July 15, 2022. More than 34,000 New Jerseyans have died from COVID-19; over 2,500 people a day are still falling ill in New Jersey alone.

Acknowledging the benefits of internet-based hearings, David L. Neal, Director of EOIR, issued guidance on August 11, 2022, indicating that “all immigration courts have the capacity to hold such hearings…,” that “internet-based hearings have proven a valuable safety measure during the pandemic, as immigration judges can conduct such hearings without requiring groups of people to congregate in a courtroom…,” and that “EOIR anticipates that, going forward, internet-based hearings will remain essential to EOIR’s operations.”

“In fact, EOIR has been holding stakeholder meetings across the country to explain the continued benefits of utilizing Webex in immigration court proceedings. Why, then, would Newark EOIR, which was the first immigration court in the nation to use the WebEx system, suddenly choose to abandon it? Logically and logistically, this makes no sense,” explained Jason Scott Camilo.

Virtual hearings provide other benefits as well. Virtual hearings allow the courts to efficiently process more cases safely. Private attorneys and pro bono organizations are able to represent immigrants more effectively, having the ability to beam into various courtrooms in different locations in a single day.

According to AFGE Local 511, virtual court appearances enable prosecutors to minimize their exposure to hundreds of people in crowded courtrooms every day, while having more time to allocate their limited resources towards resolving cases outside the courtroom in motion practice and in consultation with opposing counsel. OPLA offices are understaffed, and virtual courtrooms enable telework, which in turn permits them to better manage their out of court duties, which primarily consist of efforts to reduce the immigration court backlog. “It makes no sense to hinder government attorneys attempting to assist EOIR in resolving cases ,” said AFGE Local 511’s Executive Vice President, Ginnine Fried, who is assigned to the Newark office.

Newark EOIR’s newly-announced policy requiring attorneys to appear in person or request a waiver is in direct opposition to the resolution of the federal lawsuit, is in direct opposition to the policy of the EOIR Director and, if implemented on October 3, 2022 as planned, will imperil the

health and safety of all who will be forced to appear in person. No other court in the state has taken such radical action. AILA NJ attorneys and AFGE Local 511 attorneys agree there is no valid public policy reason to implement this drastic change, and numerous public policy reasons to continue with virtual immigration court hearings: public safety, increased court efficiency, and uniformity. Standing united, these opposing sides are beseeching the Newark EOIR to let safety prevail and to preserve the health of those Americans working to preserve a fair and equitable Immigration system.

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Here’s the text of a letter to Director Neal from the NJ State Bar:

September 29, 2022

Sent via email to david.neal@usdoj.gov

Director David L. Neal

Executive Office for Immigration Review U.S. Department of Justice

950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Dear Director Neal:

NEW JERSEY STATE BAR ASSOCIATION

JERALYN L. LAWRENCE, PRESIDENT Lawrence Law LLC 776 Mountain Boulevard, Suite 202 Watchung, NJ 07069 908-645-1000 • FAX: 908-645-1001 jlawrence@lawlawfirm.com

On behalf of the New Jersey State Bar Association, which includes immigration attorneys among its 16,000 attorney members, I write to seek reconsideration of the policy change the Executive Office of Immigration Review (EOIR) has scheduled to implement in Newark, NJ, on Oct. 3, 2022. After more than two years of successful Webex Master Calendar hearings, EOIR will again require immigration attorneys to appear in person. While vague Webex bandwidth issues have been cited as the impetus for the change, there has been no stated reason why EIOR will not default to the prior practice of holding Master Calendar hearings telephonically. To be sure, there are legitimate concerns about the ability to judge credibility or simultaneous interpretation in certain telephonic immigration hearings, but those issues are not in play here as EOIR has waived clients’ appearance in Master Calendar hearings. Reverting to the pre-pandemic, inflexible court appearance requirements is both unnecessary, in light of back-up telephonic hearing capabilities, and presents costly time and monetary burdens to attorneys and respondents.

I. EOIR HAS SUCCESSFULLY HELD WEBEX HEARINGS SINCE THE HEIGHT OF THE COVID-19 PANDEMIC IN 2020.

EOIR Newark began Webex hearings in summer 2020 because of litigation filed by New Jersey immigration attorneys in the New Jersey chapter of Association of Immigration Lawyers Association (AILA) on July 31, 2020, in the District Court of New Jersey, Newark Vicinage. That suit sought protection from EOIR Newark’s order compelling attorneys to appear in person during the pandemic. As a result of this litigation, Assistant Chief Immigration Judge David Cheng (ACIJ Cheng) of the New Jersey Immigration Court, and on behalf of EOIR Newark, committed to providing attorneys with remote videoconferencing for the duration of the pandemic. As part of the parties’ stipulation for dismissal, the parties agreed to the following:

New Jersey Law Center • One Constitution Square • New Brunswick, New Jersey 08901-1520 732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • njsba.com

WHEREAS, PM 21-03 further provides that, “[o]nce WebEx compatibility is available at an immigration court, for the duration of the declared national emergency related to COVID-19, either party may file a motion for the alien or the representative for either party to appear at a hearing by VTC through WebEx rather than in person,” see id.; and

WHEREAS, PM 21-03 further provides that motions to appear at a hearing by VTC through WebEx for any party or party attorney/representative, like motions for telephone appearances, are “subject to the discretion of the immigration judge, any applicable law and any applicable requirements of the ICPM [Immigration Court Practice Manual], a standing order, or a local operating procedure,” see PM 21-03 at p. 4.

See Stipulation for Dismissal, Docket 44, dated Feb. 16, 2021 (Docket No. 2:20-cv-09748- JMV-JBC) (emphasis added), attached hereto as Exhibit A.

In the wake of that consent order, EOIR Newark joined all other state and federal courts in New Jersey in operating virtually during the pandemic. In practice, and pursuant to ACIJ Cheng’s Standing Order dated June 19, 2020, all Master Calendar hearings were held telephonically, without the need for a motion, and all respondents’ appearances were waived if an attorney appeared on their behalf. See Standing Order dated June 19, 2020, attached hereto as Exhibit B. This Standing Order was rescinded pursuant to ACIJ Cheng’s Standing Order on Dec. 28, 2021, effective Jan. 10, 2022, at which time Master Calendar hearings changed from being held telephonically to being held via Webex. As it was before, these were without the need for a motion, and all respondents’ appearances continued to be waived if an attorney appeared on their behalf. See Standing Order dated Dec. 28, 2021, attached hereto as Exhibit C.

Even today, many court operations across New Jersey continue to be virtual. To name a few, state municipal matters are being managed remotely, except for DUIs and trials, and in Superior Court, non-consequential hearings such as preliminary appearances and status conferences continue to be held remotely.1 The U.S. District Court for the District of New Jersey extended its standing order on Aug. 8, 2022, regarding virtual hearings for criminal proceedings.2

Additionally, EOIR itself has acknowledged the benefits of internet-based hearings, for which Newark was a national leader in its overall success as a pilot program jurisdiction. On Aug. 11, 2022, EOIR issued Director’s Memorandum 22-07.3 That stated, “all immigration courts have the capacity to hold such hearings…,” and “internet-based hearings have proven a valuable safety measure during the pandemic, as immigration judges can conduct such hearings without requiring groups of people to congregate in a courtroom…” The memo cites the benefits of internet-based hearings, including that “Respondents and counsel appearing remotely are

1 See njcourts.gov/public/covid19_one-stop.html#court_hearings, last accessed Sept. 27, 2022.

2 See njd.uscourts.gov/sites/njd/files/CARESActSOSixthExt.ofSO2021-03.pdf, last accessed Sept. 27, 2022. 3 See justice.gov/eoir/page/file/1525691/download, last accessed Sept 27, 2022.

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relieved from traveling to court.” Finally, the memo said that “EOIR anticipates that, going forward, internet-based hearings will remain essential to EOIR’s operations.”

II. EOIR NEWARK INTENDS TO SUSPEND STANDARD WEBEX HEARINGS ON OCT. 3, 2022, WITHOUT PROPER NOTICE TO THE BAR, INCLUDING NJSBA.

Notwithstanding the above, the EOIR seeks to disband the standard for Webex hearings without proper notice to New Jersey attorneys and their clients who will be substantially and disproportionately affected by this sudden policy shift. The NJSBA only learned of this policy through its affiliate AILA NJ members when the committee chair for AILA NJ announced the new policy to its members by email on Aug. 30, 2022. The email was supplemented on Aug. 31, 2022, and again Sept. 8, 2022. The below paragraphs, taken from our AILA NJ colleagues’ letter to EOIR leadership, contain the entirety of the new policy, which was communicated via the emails referenced above.

From the Aug. 30, 2022 Email from EOIR Committee Chair:

The standing order for Webex hearings is revoked and in person appearances required as of 10/3/22. This of course is subject to exceptions and variations as follows:

1. Webex hearings will continue for all cases heard by Judge Ranasinghe and Judge Jeannopolous

2. Judge Pierro and Judge Chen will have in person master calendars and Webex merits hearings.

3. Judges Rubin, Rastegar, Riefkohl, Finston, Wilson and Lane will have in person hearings master and merits.

4. Represented respondents’ appearances are waived for master calendars like they are now on Webex masters, but not for merits hearings. This includes cases where an attorney is already on record or making his/her first appearance. Atty shows up, the respondent does not have to appear. If you are hired at the last minute and can’t make it, the respondent has to appear.

5. This does not apply to Elizabeth hearings as the facility does not admit visitors, all remote hearings.

6. If it is Judge Shirole or Pope and the hearing notice is for Newark, (DD Case), in person at Newark. Any doubts about Shirole call Elizabeth. Pope will all be in person.

7. You can still file a motion for a Webex hearing for good cause but it MUST be filed 15 days or before. If it is not granted you have to

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appear. I am told the reason for this is the Webex bandwidth is incapable of handling the level of internet traffic that has developed. The system is crashing constantly. More and more attorneys are using it with technical issues constantly. So the “good cause” issue will be a major consideration in granting or denying motions for Webex calendars.

From August 31, 2022 Email from EOIR Committee Chair:

1. DHS has to appear in person and they will be required to file motions for Webex.

2. I failed to include ACIJ Cheng and IJ Mullican among the list of judges where in person appearances are required.

From September 8, 2022 Email from EOIR Committee Chair:

ACIJ Cheng has rephrased the “good cause” language requirement for a Webex motion. He chooses to phrase it as “there has to be a reason”.

See AILA New Jersey letter dated Sept. 23, 2022, attached hereto as Exhibit D.

III. THE NEW POLICY FAILS TO PROVIDE PROPER NOTICE TO NEW JERSEY ATTORNEYS AND IT IS IN CONFLICT WITH PRINCIPLES OF EQUAL ACCESS TO JUSTICE, DUE PROCESS AND FUNDAMENTAL FAIRNESS.

EOIR Newark failed to circulate a general notice to the entire bar of the policy change and thereby limited the ability of all practitioners to learn of the change in a timely fashion.

Indeed,

unless immigration attorneys are members of AILA NJ, which some, but not all NJSBA Immigration Law Section members are, they might still be unaware of this abrupt change in policy, which will prejudice them and their clients. To date, EOIR Newark has not published a formal standing order to officially announce it. This lack of notice will hinder equal access to the justice system for countless respondents whose attorneys are not aware of the sweeping changes

made to the practice. As our AILA NJ colleagues adeptly stated, notice of these changes should come directly from EOIR Newark in the form of a standing order, notice to the bar, website update, or other written statement. Further, the new policy is confusing and complicated in its

implementation.

This new policy also denies equal access to justice because of the effect it will have on attorneys’ fees. The fees for appearing at Master Calendar hearings in person, rather than virtually, will be markedly more expensive, and needlessly so, for immigration clients. Although clients’ appearance would be waived, the time attorneys spend to appear in person will be exponentially greater than that spent at a Webex appearance. In immigration removal proceedings, where respondents have no right to court-appointed counsel, many clients will find it cost prohibitive to pay an attorney for protracted appearances at Master Calendar hearings in Newark. An additional

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consequence may be that seasoned immigration attorneys would limit the removal defense cases

they accept that require needless Newark appearances.

Consistency in agency practices is a hallmark of due process and fundamental fairness. Respondents and attorneys should be able to rely on established policies and practices and conform their behavior accordingly. To be clear, changes should be announced with reasonable notice and ample breadth to the entire legal community. EOIR Newark’s decision to change course without prior, reasonable notice will have serious economic and practical consequences to immigration attorneys and their clients.

IV. THE NEW POLICY WILL BE UNNECESSARILY BURDENSOME AND WILL RESULT IN ADDITIONAL BACKLOGS AND INEFFICIENCIES THROUGHOUT THE IMMIGRATION COURT SYSTEM.

The new EOIR Newark policy will burden immigration attorneys by immediately requiring them to appear in person in Newark for Master Calendar hearings while their clients’ appearances remain waived. A Master Calendar hearing in Immigration Court is the equivalent to a status conference in most other litigation-based practice areas. They are administrative, taking approximately five to 15 minutes to complete. This will place a heavy burden on immigration attorneys across New Jersey all of whom will again be required to be physically present on the 12th Floor of EOIR Newark, which is New Jersey’s sole immigration court, by 8:30 a.m. on any given weekday for a hearing that will likely last fewer than 15 minutes. This change will be a hardship for attorneys from the south, such as an attorney from Cape May who would have to travel 148 miles to Newark, as well as those from the north, such as an attorney from Montague

who would have to travel 59 miles to Newark, all for a brief hearing.

A silver lining of the COVID-19 pandemic has been the legal community’s embrace of technology. Attorneys and courts alike learned, adopted, and then mastered a more efficient process to effectively practice law. There is no reason to revert to antiquated, unnecessary practices. Health concerns aside, appearing for Master Calendar hearings via Webex has proven to be a much more efficient process that reallocates attorneys’ time into their files and clients’ valuable financial resources. If Webex is experiencing bandwidth issues, telephonic Master

Calendar hearings should be the back-up policy for attorneys rather than in person Master Calendar hearings. Immigration attorneys rely on Webex hearings to manage their practices, caseloads and clients’ schedules and expectations. Immigration attorneys have relied on the belief that EOIR Newark’s Master Calendar hearings would be handled in a remote fashion and have entered into retainer agreements with clients with fee estimates that do not contemplate in- person appearances, have scheduled their calendars, and accepted other court hearing dates, upon that belief. This new policy, which is being implemented in a haphazard manner, creates numerous conflicts, requiring voluminous motion practice to correct. The new policy would upend these successfully established practices on which attorneys, their staff, and their clients

have come to rely over the last two years.

The new policy states that motions to appear via Webex will be entertained, but that they must enumerate a “reason for the request.” Requiring a motion requesting a virtual hearing on every Master Calendar hearing, where an attorney may have dozens in any given week, is an

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overwhelming and unnecessary burden. Additionally, the court, and its already backlogged docket, will be flooded with motions for virtual hearings. The most likely reality is that a majority of attorney motions requesting Webex appearances would be undecided by the date of the appearance. That would lead to a stressful situation each week in which immigration attorneys cannot properly plan their schedules and calendars because they do not know whether or how the immigration judge has ruled on their motion, and whether an in-person appearance will be necessary. Additionally, calling EOIR Newark to ascertain an immigration judge’s decision on a pending Webex motion is, and will continue to be, an unreliable practice strategy. Court staff are already far too busy with court administration to field dozens of additional calls

from immigration attorneys each day relating to these issues.

EOIR should continue to permit immigration attorneys to appear for Master Calendar hearings via Webex as standard policy, without a motion. Although EOIR Newark has cited bandwidth concerns as an impetus for the sudden return to in person hearings, it has failed to set forth any basis for not defaulting to the process of holding Master Calendar hearings telephonically nor any substantive reasoning to support the policy that an attorney’s in-person appearance at a Master Calendar hearing is vital to the judicial process. Indeed, prior to the Dec. 21, 2021, EOIR Newark standing order to conduct Master Calendar hearings by Webex, all Master Calendar hearings were handled successfully via telephone, with the respondent’s appearance waived. If bandwidth upgrades are a concern, EOIR Newark should temporarily reinstate that practice and hold Master Calendar hearings with immigration attorneys via telephone until Webex bandwidth

issues are rectified.

Once again, the NJSBA urges this court to permit hearings for all Master Calendar hearings to be held telephonically or via Webex, without the need for a motion. When we learn and implement a better process, we should embrace that spirit of innovation and creative problem solving rather than revert to antiquated processes. We look forward to working with EOIR Newark to find solutions that allow the court to efficiently accomplish its work and best serve the litigants who appear before it.

Very truly yours,

Jeralyn L. Lawrence, Esq.

President, New Jersey State Bar Association

Cc: Hon. David Cheng, Assistant Chief Immigration Judge, EOIR Newark (sent via email to david.cheng@dhs.gov)

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

One of my reliable sources in the DMV area says that DHS is predicting the same awful “bandwidth” mess at the newly opened “Sterling Immigration Court.” How does a judicial system open “new courts” and mass reschedule cases without checking out basics like “bandwidth capacity” in advance? Total, inexcusable incompetence!

Sadly, this is not a surprise to those of us who have been blasting Garland’s horrible failure to make the glaringly obvious (to all but him) systemic, structural, and personnel changes to restore at least a modicum of due process in his failed “court system” — America’s worst courts, as I have been saying over and over.

When are Dems in Congress finally going to provide some meaningful oversight and force Garland to answer tough questions about his “due process disgrace” @ EOIR? Senator Booker and Senator Menendez, where are you?

🇺🇸 Due Process Forever!

PWS

09-30-22

EYORE — “Eyore In Distress”
Poor Eyore can’t catch a break — and, neither can the prosecutors, private attorneys, and individuals subjected to Garland’s botched “management” of EOIR — “America’s Worst Courts!”

🗽⚖️ REMEMBERING JUDGE WILLIAM VAN WYKE — Tributes Pour In From His Round Table Colleagues! 🛡⚔️

Judge William Van Wyke (D – Aug. 14, 2022)
U.S. Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
“A True Due Process Visionary”
PHOTO: the world.com

Remembering William

From his fellow former Immigration Judges:

This news is very sad.   William appeared before me years ago when he was an attorney for CARECEN and I was the sole Immigration Judge in Washington DC. Before the 1986 Amnesty, my docket was largely persons from El Salvador, who were the bulk of his case load.   I saw him close to daily in those years.   Ironically, once he became a colleague -sitting in Philly, York and New York, I saw much less of him.

            Passionate is indeed the word that describes him.   His death is truly a loss to society.

            – Joan Churchill, Immigration Judge, Washington, D.C./ Arlington, VA – 1980 – 2005

So sad to hear. I worked my first legal job with William at CARECEN in Washington DC, we were two attorneys representing hundreds of clients in what at the time a no- win environment where all court cases were being denied. William was a tireless advocate for justice and the little guy and relished playing David to the system’s Goliath.

I later followed his lead in becoming an IJ, meeting with him at York detention court where he assuaged my doubts and concerns about an IJ’s ability to be effective in achieving our goals of putting the respondent first.

Golden Slumbers, William.

            – Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004

William was both an honorable man and an honorable judge. Before he became an immigration judge, he often appeared in the Baltimore Immigration Court. I would ask, how much time do you need to present your case in chief, and he would say , at least 1 day, judge! He taught me so much about El Salvador, Guatemala, Honduras…he was a passionate advocate who believed in fundamental fairness, the right to be heard, due process. He cared so much about the vulnerable people who came before us.

Rest In Peace, William.

            – John Gossart, Immigration Judge, Baltimore, 1982-2013

William was an inspiration. So devoted to justice and uncompromising despite the personal costs. His memory will be a blessing to us all, as well as a reminder to hold true to our beliefs. He will be sorely missed.

            – Dana Leigh Marks, Immigration Judge, San Francisco, 1987-2021

So shocking to hear about William. I’m so sorry for his family. Paul Grussendorf, you had it right when you said he relished playing David to the system’s Goliath. He was brilliant, thoughtful and tireless, and a warm and collegial colleague.

            – Terry Bain, Immigration Judge, New York, 1994-2019

I echo what Terry said. He was a great colleague. I am so sad for his young children.

            – George Chew, Immigration Judge, New York, 1995 – 2017

This is so shocking! William was a rare combination of a legal scholar, a genuinely caring human being and a compassionate judge. I’m very sorry for his family.

            – Sarah Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012

I concur with Terry and the others. I just saw William on 7/31 at Steve Morley’s retirement celebration in Philadelphia. He was as animated and passionate as ever-among the most powerful and persuasive advocates to have ever served as an IJ. William will be missed.

            – Charles Honeyman, Immigration Judge, New York and Philadelphia, 1995-2020

I am so saddened by Bill’s untimely passing. I practiced before him in York and for his brief stint in Philadelphia before his return to NY. It was always a pleasure and refreshing to see an IJ so passionate about immigrant rights. And, I spoke with him in NY shortly before I took the bench 12 years ago. It was a pleasure to reconnect with him at my retirement party 2 weeks ago. Just so sad.

            – Steve Morley, Immigration Judge, Philadelphia, 2010-2022

I cant get over this shocking and sad news about William’s passing. He is someone Ive known for so long – back to the times in the 80s when I’d come to DC from Boston for marches for Salvadoran and Guatemalan asylum rights! I knew William from the National Lawyers Guild Immigration Project. Such a devoted warrior and thinker for civil and human rights!

As I said elsewhere, we had a lot of contact when he was at York and I was at the BIA. We shared a commitment to fairness and justice. He is such an honorable person and an inspiring and humane advocate for those he represented and whose cases he adjudicated. l’ll miss him.

            – Lory D Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002

After I met William during my new Immigration Judge training, we quickly became good friends. He was one of the most brilliant lawyers I’ve ever known, a staunch warrior for justice, and a lovely person. He will be terribly missed. I really can’t believe he is gone.

            – Carol King, Immigration Judge, San Francisco, 1995-2017

William was a very caring and compassionate judge. He was also a terrific human being who touched so many lives in a positive way!

            – Robert D. Weisel, Assistant Chief Immigration Judge, Immigration Judge, New York, 1989-2016

I always admired his devotion to justice and especially his bravery and righteousness. I wish I had known William well enough to share that I also had a son named Camilo. We would have gotten to know each other so much better.

            – Laura Ramirez, Immigration Judge, San Francisco, 1997-2018

He really was a wonderful advocate for immigrants. I always remember government counsel complaining to Judge Creppy and I that he was too nice and too helpful to detained clients. Such an indictment. We needed more Judges like him.

            – William P. Joyce, Immigration Judge, Boston, 1996-2002

I will always remember him as someone who put his duties to the law, human dignity, and his country above “career comfort.” Compare that with the many “go along to get along” appellate judges on the BIA — unwilling to properly review records and enforce Mogharrabi and Cardoza because it might rock the boat and slow down the deportation assembly line. William laid his career on the line for higher values of humanity and fairness.

Like Bill Joyce, I say we we need more of that from our judges from EOIR to the Supremes!

            – Paul W. Schmidt, Chairperson and Appellate Immigration Judge, Board of Immigration Appeals, 1995-2003; Immigration Judge, Arlington, VA, 2003-2016

My experiences with William were mostly after he left York. We became friends and spoke freely of our similarly being derailed because others didn’t approve of how we viewed our duty to the sacred office we held. I tried to give him some of my silly humorous advice based on Alexander Zholtenis advice that when in exile tend to your craft. Later he expressed his appreciation for that silly advice I got from my kid brother. William, as everybody noted was a first class mind individual and legal scholar. I’ll always miss him.

            – Gus Villageliu, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2003; Immigration Judge, Miami, 1990-1995

I also echo all that has been said. I knew William from our IJ conferences in addition to periodically speaking with him by phone. Whatever the issue, he was always the voice of experience, respect and sensitivity.

He was a good judge. He was a good man. May he RIP.

            – Alberto Gonzalez, Immigration Judge, San Francisco, 1995 – 2005

I did not know William well, perhaps having run into him at AILA conferences before we each became IJs in 1995. There were a few times that we connected on seemingly humorous events, such as EOIR having Bernadette Dohrn present at our national training one year. (She had been known maybe 20 years earlier as a leader in the Weather Underground). I had immense respect for him and his forthrightness about what was fair and just. A powerful voice that will be missed.

            – Polly Webber, Immigration Judge, San Francisco, 1995-2016

Very, very sad news…A warrior for Justice. May his memory be a blessing.

            – Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007

He will be missed. One of the best we had.

            – Steve Abrams, Immigration Judge, New York, Varick St., and Queens Wackenhut, 1997-2013

The descriptions are apt. and I concur on the great loss that his passing represents and feel very sad about this news.

I first met him when I was sitting on the ABA’s Coordinating Committee on Immigration – I believe that was in the late 80’s. We were on the commission when Pro Bar was created. He was such a knowledgeable person. He was also committed to justice and due process and he will be missed.

            – Cecelia Espenoza, Appellate Immigration Judge, Board of Immigration Appeals, 2000-2003

Saddened to hear of William’s death.

            – Patricia Sheppard, Immigration Judge, Boston, 1993-2006

That’s shocking! So sad.

            – Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019

I will remember William for his intellect, his courage, and his compassion. He will be greatly missed.

         – James R. Fujimoto, Immigration Judge, Chicago 1990-2019

I knew William primarily through appearing before him as an attorney, and then through the work of the Round Table. William’s legal acumen, compassion, and dedication to justice has been reflected in his work both on and off the bench. I had just seen him in person at Steve Morley’s retirement party, where we talked about many things, and got to know each other better. I am very thankful for that opportunity, because I very much enjoyed our conversation, and especially our discussion of how much he was enjoying retirement and the time he was able to spend with family and friends.

            – Sue Roy, Immigration Judge, Newark, 2008-2010

William had a mind like no one else, a really deeply-held sense of right and wrong, a scholarly grasp of the law, and patience to take as long and go into as much detail as humanly possible to get to the correct result. We won’t see another like him. I am honored to have known him. He will be greatly missed.

– Jeff Chase, Immigration Judge, New York, 1995-2007

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

Many thanks to our colleague Hon. “Sir Jeffrey” S. Chase for compiling, organizing, and formatting the many e-mails that circulated among the Round Table paying tribute to our friend and colleague.

A life dedicated to serving humanity through due process. RIP our friend!

🇺🇸 Due Process Forever!

PWS

08-24-22

🇺🇸⚖️🗽AN AMERICAN LEGAL HERO LEAVES BEHIND LEGACY OF COURAGE, SCHOLARSHIP, INNOVATION, COMPASSION: A HEARTFELT TRIBUTE TO HON. WILLIAM VAN WYKE BY HON. “SIR JEFFREY” CHASE!

Judge William Van Wyke (D – Aug. 14, 2022)
U.S. Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
“A True Due Process Visionary”
PHOTO: the world.com

https://www.jeffreyschase.com/blog/2022/8/22/william-van-wyke-2

William Van Wyke

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away.

How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench.

“The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. – William” – April 1, 2021 email.

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

Prior to authoring that article, WIlliam had spent nine years pioneering the representation of Central American refugees before the Immigration Courts in Washington and Baltimore, beginning this work when the 1980 Refugee Act was still new.

“’We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted,’ Van Wyke says.” – Quote in Eyder Peralta, “Why A Single Question Decides The Fates Of Central American Migrants,” NPR, Feb. 25, 2016.

In one 1990 case in which his clients were denied asylum, William succeeded in persuading the Immigration Judge to rule that those clients could not be deported to their native El Salvador as long as the civil war continued there. William achieved this result by arguing customary international law, and analogizing a refugee’s flight from war to the customary practice of allowing a ship in distress the right to enter a port without authorization. The Washington Post quoted an immigration law authority who called the decision “one of the most impressive victories ever in an immigration court.” The decision was the subject of a law review article the following year.3

“My own experience is that people with anti-immigrant sentiments, whether in INS, DHS, EOIR or anywhere else, have always cringed at the idea of an IJ giving an unrepresented person sufficient information to make genuinely informed decisions… I remember a talk by Janet Reno at one of our conferences 20 years ago when she mentioned ‘compassion’ 12 times — I counted them. But try to actually be compassionate in specific cases in a legally appropriate and consequential way and you’re accused of overstepping judicial bounds. Didn’t I know that compassion is supposed to be a decoration, not something that actually helps the people before us?” – Email, Sept. 18, 2019

William’s appointment as an Immigration Judge in March, 1995 sent a message of hope to the immigration law community. On the bench, William maintained his methodical, detail-oriented approach. Early in his career on the bench, William reported that the INS trial attorneys had given him the nickname “the Van Wyck Expressway,” a reference to the similarly named NYC roadway that most know from traveling to or from JFK Airport. When William pointed out to one of those INS attorneys that his courtroom actually moved quite slowly, the attorney responded: “So does the Van Wyck Expressway.”

While we were both on the bench, I heard that William had developed a highly unique seating plan for his courtroom, and asked him about it one day. He showed it to me, explaining in detail his deeply thought out reasoning for the placement of every chair in the room. I don’t remember the specifics so many years later, but it was a perfect example of the strong sense of responsibility WIlliam felt towards all who set foot in his courtroom.

That sense of responsibility became even more heightened when WIlliam transferred from the court in New York to what he used to call “plain old York,” meaning the detained immigration court in York, Pennsylvania, located inside of the York County Prison.4

In one case he heard there, a non-citizen sat in jail awaiting approval of a green card petition filed by his U.S. citizen wife that could have saved him from deportation. But approval of visa petitions is not something an immigration judge can do; that power lies with the same government agency that was seeking the non-citizen’s deportation (at the time, that was INS; it is now DHS). After continuing the case multiple times to allow for a decision on the visa petition, WIlliam was repeatedly informed by INS’s attorney that no action had been taken. The INS attorney further refused to inquire as to when a decision might be expected, and insisted that rather than wait, the non-citizen should be ordered deported.

Although at the time such action required the consent of both parties, WIlliam took the bold step of administratively closing the case over the government’s objection, writing a detailed decision explaining the necessity of doing so under the facts presented.

Remarkably, rather than appeal William’s denial to the Board of Immigration Appeals, the INS attorney privately and most improperly contacted the Chief Immigration Judge by phone, who in turn improperly reopened the matter and placed it back on for hearing.

In a decision that should be required reading for all EOIR management, WIlliam fired back at both INS and his own higher-ups, stating that it would be a “manifest injustice” to deport the respondent “simply because INS has not performed its Congressionally-mandated adjudication in a timely fashion.”

Detailing the extensive efforts he had undertaken to get INS to adjudicate the visa petition, WIlliam further noted that “[t]he asymmetry of ordering one party, but asking, begging, pleading and cajoling the other party hearing after hearing without effect, can only diminish the court as an authoritative and independent arbiter in the public’s eyes.”

WIlliam took the INS and the Office of the Chief Immigration Judge to task for their unethical ex parte communication, and the latter’s unauthorized action in response to such conversation:

The Chief Immigration Judge is an administrative and policy officer without appellate or other legal authority to overrule the immigration judge’s procedural decisions in the case, see 8 CFR 3.9, 3.1(b), and ethical rules require the Chief Immigration Judge as well as immigration judges to refrain from taking action in a specific case following an ex parte communication about the case by one of the parties.

William further noted that his “decision to close the case temporarily was not a mere administrative one subject to OCIJ’s general direction, but a legal decision made as an integral part of the adjudicatory process in an individual case.” William cautioned that the private communication, which denied opposing counsel the right to be heard, protected INS from having to defend its position in an appeal to the BIA, thus giving

a procedural and tactical advantage to the INS by demonstrating to respondent, rightly or wrongly, that an INS call to the Office of the Chief Immigration Judge may be enough to undo what the immigration judge does in open court, while encouraging the INS to continue to seek results from the OCIJ privately that it might not be able to get from the BIA publicly.

William concluded:

Unable to establish or enforce the standards of conduct that this judge believes must apply, he will recuse himself from further consideration of the case. In the court’s view, only the OCIJ, which went beyond mere administrative action to direct a particular course of action in this case, is in a position to cure the appearance of impropriety its intervention has produced. The court will therefore refer this case back to the Chief Immigration Judge for whatever action he may deem fit and appropriate.

The extraordinary nature of the matter was reported in an article in the New York Times.5

In retirement, William was a member of our Round Table that filed an amicus brief in an important case in the U.S. Court of Appeals for the Second Circuit, Velasco-Lopez v. Decker. The case challenged the practice of requiring a detained non-citizen to themself prove that they would not pose a flight risk or danger to the community in order to warrant their release from detention. In its precedent decision, the circuit court agreed that such burden should be borne by the government, and not the detainee.

I share here part of William’s response to the decision

In this decision, the important starting point is that due process applies to every person in their relation to the power of government. This principle humanizes immigrant “others” and shows that when Big Government (i.e. the kind that wields power in favor of the already rich and already powerful) treads on anyone, everyone’s rights are in jeopardy. The principles relevant in bond decisions –– having ties to our communities and not being a danger to others –– are strong values that most of us honor and share, whether recent immigrants or earlier-generation immigrants, and should make all of us resist limitations on our freedom by the coercive power of jailing people.

I don’t know if they still staple those little yellow cards with red print onto files of jailed immigrants that used to say, “RUSH: detained at government expense.” Years ago when I was at York I wrote to… EOIR General Counsel, to ask if we couldn’t change those cards to be more humane, to say, “RUSH: person deprived of liberty,” or at least more neutral: “person deprived of liberty at government expense.” A change, of course, was “unnecessary” because everyone already knew the immigrants’ hardship, even if our boss’s reminder focused only on the government’s. Maybe they’ll change the cards now to remind adjudicators: “Rush: this person should not be deprived of freedom unless the government quickly decides he/she lacks any community ties AND is dangerous.” I won’t hold my breath, though.

I will conclude by saying that just recently, I set about researching a narrow legal issue that I would imagine most Immigration Judges would resolve in a few pages at most. I came across a decision that William had written on the topic shortly before his retirement from the bench that was exactly what I was looking for. It was 39 pages single spaced, and of course, absolutely brilliant.

On behalf of your fellow judges, and of all who have appeared in Immigration Court, thank you, William, for being you, for never lowering your standards. You restored the hope of so many in the power of law to make a positive difference in people’s lives, and so often showed that there was a way forward when we thought there was none. You are already greatly missed.

Notes:

William Van Wyke, “A New Perspective on Well-Founded Fear,” 1992-93 Immigration & Nationality Handbook(AILA, 1992) at 497.

Carlos Sanchez, “Lawyer’s Persistence Helps Reshape Immigration Law,” Washington Post, March 31, 1991.

Cookson, II, Charles W. “In Re Santos: Extending the Right of Non-Return to Refugees of Civil Wars.” American University International Law Review 7, no. 1 (1991): 145-171.

The York Immigration Court was closed on July 31, 2021.

Eric Schmitt, “Two Judges Do Battle in an Immigration Case,” NYT, June 21, 2001.

978 F.3d 842 (2d Cir. 2020). The author recognized the outstanding representation in this matter by the petitioner’s counsel, Julie Dona (who argued the case) and Aadhithi Padmanabhan of the Legal Aid Society, and to Souvik Saha of Wilmer Hale for his remarkable assistance in drafting our amicus brief.

AUGUST 22, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

. . . .

William spent those years trying to persuade the government of the proper application of the new law. However, INS and the newly created EOIR remained largely mired in the Cold War-influenced view of asylum that preceded the 1980 changes. And under that Cold War approach, Central Americans fleeing pro-U.S. regimes had nearly no chance to obtain asylum

A 1991 Washington Post article documented how this institutional resistance only caused William to be more persistent and creative in his legal approach.2

Kind of says it all about the entrenched, continuing, institutional resistance at EOIR to correct, generous, fair, practical interpretations of asylum law and other immigration and human rights laws! That’s what helps generate uncontrollable backlogs and brings our entire justice system into disrepute! Worst of all, it threatens the lives of those denied justice by its legal misinterpretations and mis-applications of the law!

What does it say about an institution that no longer touts or actively pursues its noble one-time-vision of “through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all?” Ironically, William’s life and achievements embody that now-defunct “EOIR vision.” But, nobody in “management” actually acknowledged that during his often-difficult tenure there.

Encouragingly, a number of Garland’s recent judicial appointments are distinguished, expert, widely respected “practical scholars” in the “Van Wyke mold.” Unfortunately, it’s going to take immediate and dramatic changes in moribund, uninspired EOIR leadership and in the “any reason to deny” BIA to overcome the “Cold War mentality,” anti-immigrant bias, assembly line procedures, “institutionalized go along to get alongism,” and unacceptably poor performance of EOIR. Right now, it’s still drag on our entire justice system that puts the future of our nation at risk!

No wonder we already miss William, his outspoken courage, and his wisdom so much. There is a void in our justice system right now where fierce due-process-focused, creative, humane, practical scholars should be leading the way in our institutions of justice!

It’s up to the “new generation” of the NDPA to break down the walls of official resistance by Garland and other short-sighted bureaucrats and politicos who lack the vision to make racial justice, immigrant justice, and equal justice for all realities rather than disingenuous unfulfilled rhetoric! Guys, your lives and those of your descendants might depend on it! So, dial up the pressure on the intransigents, many of them in the Biden Administration you helped to elect and who expect your support and votes again this Fall!

🇺🇸 Due Process Forever!

PWS

08-24-22

IN MEMORIAM: JUDGE WILLIAM VAN WYKE, ROUND TABLE MEMBER & DEDICATED CHAMPION OF DUE PROCESS FOR THE UNDERDOG HAS DIED

Courtside has received unofficial reports of Judge Van Wyke’s death. No further details are available at present.

He will be mourned by family, friends, Round Table colleagues, and many immigrants, their families, and their descendants who owe their lives to his courage, persistence, and brilliance, as a private attorney, an Immigration Judge, and an active and engaged member of the Round Table of Former Immigration Judges.

Below is his judicial bio from TRAC Immigration:

Judge Van Wake was appointed as an Immigration Judge in March 1995 in New York City. He was re-assigned to the Immigration Court in New York in June 2002, following a six-year assignment as an Immigration Judge in York, Pennsylvania. Judge Van Wyke received a Bachelor of Arts degree from Calvin College, Grand Rapids, Michigan, in 1972. He received a Master of Arts degree in 1974, and a Juris Doctorate in 1977, both from the University of Michigan. From 1993 to 1995, he worked as an attorney with the Law Office of Thomas Elliott in Washington, DC. From 1986 to 1993, he was in private practice in Washington, DC, focusing primarily on immigration law and international human rights issues. From 1983 to 1985, Judge Van Wyke served as staff attorney for the Central American Refugee Center, also in Washington, DC. He also served 3 years as litigation director for East Arkansas Legal Services. In 1990, he worked as a law student supervisor at AYUDA, Inc., in Washington, DC. From 1992 to 1995, Judge Van Wyke also served as an adjunct professor at Washington College of Law, American University, where he taught refugee and asylum law. He is a member of the Tennessee Bar.

Rest In Peace, our friend and colleague.🗽⚖️

🇺🇸Due Process Forever!

PWS

08-15-22

🛡⚔️THE ROUND TABLE RIDES AGAIN! — INJECTING A DOSE OF REALITY INTO 1ST CIR. LITIGATION — No, “Briefing Completed” Doesn’t Mean That A BIA Decision Is Imminent — With An 80K+ Appellate Backlog, No Leadership, No Coherent Plan, Many Appellate Judges “Programmed To View Only Removals With Urgency,” & “Priorities” That Change On Political Whim, It’s A Grave Mistake To View EOIR “Through The Lens Of A ‘Normal’ Court System!” 🤯

“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:

Amici curiae are 38 former immigration judges (““IJs””) and members of the 2

Board of Immigration Appeals (““BIA””).2
Amici have dedicated their careers to improving the fairness and efficiency of

the United States immigration system, and have an interest in this case based on their combined centuries of experience administering the immigration laws of the United States. Amici collectively have presided over thousands of removal proceedings and thousands of bond hearings in connection with those proceedings, and have adjudicated numerous appeals to the BIA.

In denying Anderson Alphonse’’s (““Mr. Alphonse”” or ““Petitioner””) petition for writ of habeas corpus, the United States District Court for the District of Massachusetts (Saylor, J.), relied in part on the premise that it was ““readily foreseeable that proceedings will conclude in the near future”” because Mr. Alphonse’’s appeal to the BIA was ““fully briefed.”” This premise—at best aspirational when made in January 2022—has proven erroneous: nearly six months later, Mr. Alphonse’’s BIA appeal remains undecided. This is, regrettably, unsurprising given the surging caseload in the immigration courts, which now exceeds 1.8 million

1
1Amici state that this brief was not authored in whole or in part by counsel for any

party, and no person or entity other than Amici or their counsel made a monetary contribution to fund the preparation or submission of this brief.

2
2 See the appendix for a complete list of signatories.

1

Case: 22-1151 Document: 00117894678 Page: 10 Date Filed: 07/05/2022 Entry ID: 6505717

pending cases. This crushing backlog—adding significantly to the backlog facing the BIA—-iis extremely relevant to the question of when a removal proceeding is likely to conclude. In fact, it might be the most important factor in this equation. Yet this factor is absent from the First Circuit’’s current analytical framework, opening the door to erroneous suppositions and conclusions based on a cursory review of a removal proceeding’’s posture, such as the one made by the District Court here.

Thus, Amici write to respectfully urge the Court to reassess the impact the backlog of cases facing the immigration courts may have on the ability of courts to accurately forecast when removal proceedings will conclude. Given their extensive experience with the immigration courts and BIA appeal process, Amici are uniquely positioned to provide insight into this narrow, but critical, issue.

The case is Alphonse v. Moniz, currently pending in the 1st Cir. Here’s a complete copy of our brief:

Round Table – Alphonse (1st Cir) FILED Amicus Brief – 7.5.22

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

Many thanks to our wonderful pro bono counsel Matthew Levitt and Evan Piercy at MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

Although BIA decisions, particularly in non-detained cases, might take many months or even years to decide, the appellant is given only a relatively short period of time to file a brief — 21 days. A single 21 day extension may be requested and is usually granted, although it is common for the appellant not to be notified that the extension has been granted until after the extension period has expired.

Requests for additional or longer extensions are rarely granted. Motions to accept late-filed briefs, even those only a day or two tardy, are often denied. On the other hand, failure to file a timely brief after requesting a briefing schedule is a potential ground for summary dismissal of an appeal regardless of the merits! 8 C.F.R. § 1003.1(d)(2)(i)(E).

These rigid procedures might give the false impression that the EOIR system is driven by a sense of urgency in dispensing justice. Additionally, BIA and AG decisions often disingenuously pontificate about the supposedly “critical importance” of finality in immigration decisions. It’s all BS!

As you might note, the only “urgency” at EOIR is the potentially severe consequences imposed on the appealing party, usually the migrant. One the “compressed briefing” is complete, there is no particular assurance that the appeal will be decided on the merits for months, years — or ever! Additionally, the BIA can sometimes make dismissal of an appeal easier by ignoring an untimely brief or even by summarily dismissing an appeal for failure to file a brief without dealing with the merits.

Moreover, the hopelessness of the 1.82 million case EOIR backlog and the “assembly line justice” encouraged by EOIR’s “political masters” at DOJ results in a sloppy, “haste makes waste” approach to “justice.” This, in turn, means wrongful removals or unnecessary “remands” from Circuit Courts.

But, not to worry — there is neither penalty nor accountability for the BIA’s poor performance. Wrongly deported individuals are “out of sight, out of mind” — assuming they are even still alive.

Moreover, court remands actually give the BIA unlimited opportunities to correct their sloppy and unprofessional work, often with the benefit of a more thoughtful analysis from the Circuit Court. Not that such beneficial treatment by the Circuit necessarily means the BIA will get it right on remand. The BIA has been known to get “chewed out” by Circuit Courts for ignoring or “blowing off” their mandates.

“Red flags” 🚩 should be popping up all over the Falls Church horizon — so big that even the often “asleep at the wheel” immigration policy folks at the Biden Administration can see them! But, don’t hold your breath! Our Round Table, however, will continue “speaking truth to power” and revealing the real, awful due process mess at EOIR.

The respondent in this case is ably represented by Associate Dean Mary Holper of Boston College Law and her Immigration Clinic. In a way, this is a classic illustration of why Garland has been unable to fix EOIR. Dean Holper is an accomplished, universally-respected litigator, teacher, writer, practical scholar, and administrator. She is exactly the type of NDPA All-Star/Expert whom Garland should have recruited on “Day 1,” brought in, and empowered to fix EOIR and reinstate and realize its due process mission. Instead, Garland’s EOIR continues to flail and fail while the talent who could fix it are lined up in court against him!

🇺🇸Due Process Forever!

PWS

07-18-22

🛡⚔️ THE LEGEND OF THE ROUND TABLE CONTINUES TO GROW! — Making A Difference Even When The Results Are Not What We Wished For! — PLUS, “BONUS COVERAGE” OF THE “SUPER MOON,” COURTESY OF “SIR JEFFREY!”

“Sir Jeffrey” Chase reports:

9th Circuit Decision in U.S. v. Bastide-Hernandez

Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.

However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.

Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:

“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”

I think that this lengthy reference demonstrates the importance of our work.

Best, Jeff

US v. Bastide-Hernandez

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

In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.”

What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?

Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!

Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!

We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!”

That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.”

Bonus Coverage:

“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”

🇺🇸 Due Process Forever!

PWS

07-14-22

⚖️🗽👩🏽‍⚖️👨🏽‍⚖️ ROUND TABLE 🛡⚔️ WEIGHS IN ON BURDEN OF PROOF FOR VACATED CONVICTION IN 9TH CIR. — Jovel v.Garland

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member Round Table of Former Immigration Judges

SUMMARY OF ARGUMENT

A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”

Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte

2 Further statutory references are to the California Penal Code unless otherwise indicated.

-2-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 12 of 34

reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,

Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.

First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.

Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.

-3-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 13 of 34

Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.

Here’s the full amicus brief:

2022-07-05 (Dkt. 35.1) IJ’s Amici Curiae Brief

Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!

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

Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:

Dear former IJs and BIA members and GMSR Counsel,

Apologies for the delayed email, but thank you all again for your excellent and powerful brief. It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here. It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy. Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.

Best,

Tomo Takaki

Covington & Burling LLP

And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang of GREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!

Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration?

Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?

Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs.

Accountability and bold progressive reforms don’t seem to be politically “in” these days. But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.

🇺🇸 Due Process Forever!

PWS

07-09-22

🤮☠️DUE PROCESS DISASTER IN 4TH CIR! — Trump Judges Strip Individuals In “New American Gulag” ⚰️ Of Constitutional Rights & Human Dignity — Dissenter, Chief Judge Urbanski (WD VA) The Only Panel Member To Follow Constitution!

The case is Miranda v. Garland, and it’s published:

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Quote from Judge Marvin Quattlebaum’s wrong-headed decision, joined by fellow Trump appointee Judge Julius Richardson:

QUATTLEBAUM, Circuit Judge:

8 U.S.C. § 1226(a) permits the Attorney General to detain aliens1 pending their

removal hearings. And the Attorney General has adopted procedures for making that discretionary decision. Under those procedures, an alien is given notice and three opportunities to seek release by showing they are neither a flight risk nor a danger to the community.

A district court determined that a class of aliens had a likelihood of establishing that those procedures violated the Due Process Clause of the Fifth Amendment of the United States Constitution. That court then issued a preliminary injunction ordering, on a class- wide basis, that to continue detaining an alien under § 1226(a), the government must prove by clear and convincing evidence that an alien is either a flight risk or a danger to the community. The district court also required immigration judges, again on a class-wide basis, to consider an alien’s ability to pay any bond imposed and consider alternatives to detention.

However, under 8 U.S.C. § 1252(f)(1), the district court lacked jurisdiction to issue class-wide injunctive relief that enjoined or restrained the process used to conduct § 1226(a) bond hearings. As for the individual relief issued by the district court, the detention procedures adopted for § 1226(a) bond hearings provide sufficient process to

1 We realize that the use of the term “alien” has been the subject of some debate. See e.g., Martinez Rivera v. U.S. Att’y Gen., No. 20-13201, 2021 WL 2836460, at *7 (11th Cir. July 8, 2021). We use the term because Congress used it in the text of the applicable statutes, and the same term is used in the applicable regulations. Our use of the term “alien” is not intended to express any opinion, pejorative or otherwise, about the plaintiffs in this action or others challenging their detention under our immigration laws.

3

satisfy constitutional requirements. For that reason, the aliens are unable to establish a likelihood of success on their due process claims. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor or that an injunction is in the public interest. Therefore, we vacate the district court’s preliminary injunction order.

A better quote from the only Panel Judge to get it right, Chief Judge Michael Urbanski of the WDVA, (an Obama appointee) sitting by designation:

While I am mindful of the executive’s vast authority over immigration, it must still

comport with constitutional safeguards. With this balancing in mind, requiring a detained noncitizen to prove he is not a danger to the community or risk of flight is unconstitutionally onerous on an already vulnerable group of defendants and violates due process. In sum, I respectfully dissent and would affirm the district court’s conclusion that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) detention hearings and remand the case to the district court for consideration of § 1252(f)(1) and the availability of class-wide declaratory relief.

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

Well, at least one judge got it right!

The Round Table ⚔️🛡 filed an amicus brief in support of the respondents in this case. Additionally, Round Table Member Judge Denise Slavin filed an affidavit (cited by the USDJ) before the United States District Court for the District of Maryland, at Baltimore. There, Hon. Catherine C. Blake, Senior District Judge, correctly ruled for the respondents. The Trump DOJ appealed, and Garland decided to continue to advance the prior Administration’s anti-due-process position before the Fourth Circuit.

Gosh, and Dem politicos wonder why it’s hard for them to gin up enthusiasm for the midterms!

🇺🇸Due Process Forever!

PWS

05-15-22

⚖️STACY CAPLOW @ AILA IMMIGRATION COURTS ARE SINKING — ROUND TABLE 🛡⚔️ FIGHTING FOR CHANGE!

“Sir Jeffrey” Chase reports:

Hi all: A new volume of the AILA Law Journal was released yesterday. It contained an article by Stacy Caplow, co-director of Brooklyn Law School’s Safe Harbor Project, called The Sinking Immigration Court: Change Course, Save the Ship. I’m not sure if all can access it, but the link is:

https://www.aila.org/File/Related/19110103g.pdf#page=40. It is a very much worth reading generally, but I wanted to highlight the following mention of our group at pp. 49-50:

The Round Table of Former Immigration Judges, “a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system,” bears witness to the degrading of the court and, speaking with the voice of years of experience, has been an increasingly active and vocal critic of recent developments at the court both before Congress and as amicus curiae.

There are also citations to a couple of our group’s statements (including one to Congress) and an amicus brief filed with the Supreme Court in the footnotes.

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

How come the Biden Administration, and particularly AG Garland, don’t “get it?”

🇺🇸 Due Process Forever!

PWS

04-28-22

Today’s Thanksgiving message from Elliott Kirschner & Dan Rather @ Steady:

🇺🇸Happy Thanksgiving and Due Process Forever from Courtside!

Related posts:

Your friend & colleague, forever, ❤️

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🇺🇸 Due Process Forever!

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Introduction and Summary of Argument

Read the complete brief here:

🇺🇸 Due Process Forever!

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Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit.

CA9 on CAT, Guatemala: De Leon Lopez v. Garland

🇺🇸 Due Process Forever!

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By Paul Wickham Schmidt

Courtside Exclusive

Oct. 4, 2022

🇺🇸 Due Process Forever!

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My colleague Sue writes:

Here’s the joint letter letter from AILA & ICE:

Here’s the text of a letter to Director Neal from the NJ State Bar:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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William Van Wyke

🇺🇸 Due Process Forever!

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Rest In Peace, our friend and colleague.🗽⚖️

🇺🇸Due Process Forever!

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“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:

🇺🇸Due Process Forever!

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“Sir Jeffrey” Chase reports:

9th Circuit Decision in U.S. v. Bastide-Hernandez

Bonus Coverage:

🇺🇸 Due Process Forever!

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Here’s the full amicus brief:

Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!

🇺🇸 Due Process Forever!

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The case is Miranda v. Garland, and it’s published:

🇺🇸Due Process Forever!

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“Sir Jeffrey” Chase reports:

🇺🇸 Due Process Forever!

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