"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Due Process is a true team effort! PHOTO: Tahirih Justice Center
Maria Daniella Prieshoff writes on LinkedIn:
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Want to level up your #advocacy skills for your #genderbased #asylum cases in #immigrationcourt?Want to learn from a real immigration judge the basics of presenting your case before the immigration court?Then join me for Tahirih Justice Center’s”Advancing Justice: Gender-Based Violence Asylum Litigation in Immigration Court” webinar series!
Part 1 of the series is on April 23, 12-1:30pm. It will focus on the case law and strategy you’ll need to present your best gender-based asylum case, including how to handle credibility, competency, and stipulations.Monica Mananzan from CAIR Coalition will join me in this webinar. To register for Part 1: http://bit.ly/3xvwPyt
Honorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges
Part 2 of the series is on April 25, 12-1:30pm. Retired Immigration Judge Lisa Dornell will explain the best practices of litigating gender-based asylum cases before an immigration judge, as well as recommendations for direct examination, cross-examination, and how to handle issues with a client’s memory, trauma, or court interpretation.To register for Part 2: https://bit.ly/3PXJqRn
Please share with your networks!Our goal for this webinar series is to help pro bono attorneys and advocates enhance their the advocacy for #genderbasedviolence to have #immigrationjustice – we’d love for you to join us!
Wonderful learning opportunity! Many thanks to everyone involved in putting it together!
Litigating gender-based asylum cases can still be an “ordeal” at EOIR, despite some decent precedents. Learn how to avoid this fate for your clients! 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Wonder whatever happened to the “gender-based regulations” that Biden ordered to be drafted by Executive Order issued shortly after taking office? At this point, given his “lobotomized/running scared/retrograde/Trumpy Lite” position on asylum seekers and immigrants’ rights, probably just as well that they died an unheralded bureaucratic death (just as similar assignments have in the last three Dem Administrations over a quarter century).
Outside of a few Immigration Judges, who, because they understand the issue and have worked with asylum-seeking women, would never be asked anyway, I can’t really think of anyone at DOJ who would actually be qualified to draft legally-compliant gender-based regulations!
GOP are misogynists. Dem politicos are spineless and can’t “connect the dots” between their deadly, tone-deaf policies and poor adjudicative practices aimed at women of color in the asylum system and other racist and misogynistic polities being pushed aggressively by the far right! While, thankfully, it might not “be 1864” in the Dem Party, sadly, inexplicably, and quote contrary to what Biden and Harris claim these days, it’s not 2024 either, particularly for those caught up in their deadly, broken, and indolently run immigration, asylum, and border enforcement systems!
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
Hi all: The Supreme Court just issued its opinion in Wilkinson v. Garland, in which our group filed an amicus brief. The Court held that the exceptional and extremely unusual hardship determination in cancellation B cases (involving non-LPRs) is a mixed question of fact and law, and is thus reviewable by circuit courts on appeal. The Court thus reversed the Third Circuit’s determination that it lacked jurisdiction.
The decision was 6-3. Sotomayor wrote the majority opinion; Jackson wrote a concurring opinion, and Roberts and Alito wrote dissenting opinions.
Our amicus brief argued:
In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual hardship” eligibility criteria for cancellation is a mixed question of law and fact.
This decision will have a major impact on cancellation B cases, as the Board’s hardship determinations will now be subject to wide circuit court review.
This case makes a huge difference! Circuit review will ratchet up the pressure on the BIA to cut the “any reason to deny” BS 💩 and start doing a quality review in every case! If not, given the number of cancellation cases in the system, there are going to be lots more Circuit remands that will jack the backlog even higher!
As put by one “Round Tabler,” this will “impact the scholarship and often times lack of analytical rigor by the Board, knowing that it is no longer completely insulated from review of its hardship determinations.” You betcha!
And don’t ever underestimate the adverse impact on due process and justice that occurs when, knowing that its decisions are “immune” from judicial review, the BIA is “pushed by the political powers that be” to cut corners, “crank the numbers,” and “keep the removal assembly line moving!” That’s why political control over the BIA’s decision-making has such an outsized adverse impact on justice for immigrants and undermines the key constitutional due process principle of “fair and impartial justice for all.”
In Memory of The Honorable Rosalind K. Malloy 1942 – 2024
Obituary
The Honorable Rosalind K. Malloy, of Marlton, NJ, passed away on February 7, 2024, at the age of 81. Loving daughter of the late Daniel and Annie. Cherished sister of Dr. Tyrone Malloy, and predeceased by Ann, Daniel, Joyce, and Marcus. Adored by many nieces and nephews. Judge Malloy was appointed as an Immigration Judge in December 1998. Prior to her appointment to the Immigration Court in Philadelphia, Judge Malloy served as an Immigration Judge at the Immigration Court in Los Angeles from December 1998 to December 2001. She received a Bachelor of Arts degree in 1964 from Hunter College, City University of New York; a Master of Arts degree in 1971 and a Masters of Education degree in 1975, both from Teachers College, Columbia University; and a Juris Doctorate in 1979 from Rutgers University. Judge Malloy was an assistant district counsel with the former Immigration and Naturalization Service in New York from 1995 to 1998. From 1993 to 1994, she served as a hearing officer with the Georgia Department of Corrections in Atlanta, Georgia. She worked as an assistant district attorney in New York from 1984 to 1989. Previously, Judge Malloy served as a teacher/guidance counselor with the New York City Board of Education and she taught biology at John F. Kennedy High School, Bronx, NY for 15 years. She was a Peace Corps. volunteer in Nigeria for several years. Judge Malloy is a member of the New York, Pennsylvania, and Georgia Bars. Cremation Private.
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Although I ran into Judge Malloy at various events during my EOIR career, and reviewed her decisions while I was a BIA Appellate Judge, I never had the pleasure of working with her or really getting to know her on a personal level.
But, based on the outpouring of heartfelt comments from those who knew her, gathered on our “Round Table Communications Network” (“RTCN”), established and maintained by Hon. “Sir Jeffrey” Chase, she was a beloved and valued friend and colleague to all around her during her distinguished legal and judicial career.
I think this quote from retired Judge Bruce J. Einhorn best captures the feelings of those knew her well:
Thanks for sharing. This is very sad news. I had the privilege of serving as a judge with Ros in LA. She was a fair, decisive, humane, and witty jurist, and a wonderful colleague. May her memory be a blessing.
A moving and fitting tribute to a life of achievement well-lived in law and society.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
A Victory before the BIA!
Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!
The holding:
The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).
Of course, our brief was not acknowledged in the Board’s decision.
A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.
As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.
Best, Jeff
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“Our Hero” 🦸♂️ Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.” Creative Commons License
The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of afaculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!
I am featured in the attached “20 Stories for 20 Years” video for Waterwell’s 20th anniversary with Kristin Villanueva, the star of the play and film versions of “The Courtroom.”
Waterwell is the theater company co-founded by the actor Arian Moayed that has been a great advocate on behalf of immigrants.
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Congrats, my friend and Round Table colleague, to you and to Waterwell!👏
Come to think of it, “Sir Jeffrey” is a pretty good moniker for an actor, as well as a leading warrior of the Round Table!🛡️⚔️
And, certainly, Immigration Court is a continuing human drama. Some would say “Repertory Theater of the Absurd!”🎭🤯
Rekha Sharma-Crawford ESQUIRE Partner and Co-Founder Sharma-Crawford Law Kansas City, KS
Rekha writes on LinkedIn:
A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever.So pleased to see it is finally seeing some daylight.
Here’s the Memorandum from EOIR Director David L. Neal:
As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:
As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.
[Director Neal’s statement is] a positive administrative development.
Here’s my take:
While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
Here’s what a clear, correct statement on BIC would look like:
BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.
The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.
In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.
3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.
Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.
To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.
Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”
Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice! https://www.flickr.com/photos/rasputin243/ Creative Commons License
In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you.
Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.
Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion.
On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.
The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:
FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:
When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).
Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).
The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.
The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.
The full ugliness and dysfunction of EOIR and the DOJ are on display here:
Aimless Docket Reshuffling in action;
Defective notice;
Violation of statutory requirements;
Defective administration of justice;
Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
Stunningly poor trial judging (2X);
Horrible appellate judging;
Frivolous defense of an unjust decision by OIL.
This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!
A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.
In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯
Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!
Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.
For years, Santos-Zacaria dreamed desperately — of escape.
In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.
But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation — and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.
The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.
The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.
“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”
In her case, both the BIA and the 5th Circuit had gone out of the way NOT to meaningfully review life or death mistakes made in the Immigration Court. In doing so, they tossed aside the realities and roadblocks facing those seeking justice in Immigration Court and their representatives (if any, in a glaringly unfair system).
This case shows the critical importance of pro bono immigration assistance. These lower court Federal Judges focused not on constitutionally required due process and fundamental fairness, or on the vulnerable human life at stake, but rather on inventing ways NOT to provide fair hearings in some of the most important, perhaps the most important, cases coming before the Federal Justice system.
Pro bono representation levels the playing field and exposes the poor performance of those whose sole focus should be individual justice, rather than “institutional task avoidance!”
I have spent my life serving our community by trying to create a more just, equitable and inclusive world. From my work as a judge striving to give everyone an equal opportunity for justice, to my work as a law professor training the next generation of legal minds, to my work as a local Democratic Party leader helping to elect progressive candidates, I have always answered the call to serve.
I am Cecelia Espenoza, and I am thrilled to announce that I have officially filed to represent North and West Denver in the Colorado State House!
I have seen the amazing results when the community works together to make a difference. My parents were migrant farmworkers who became small business owners. My father became a community icon as the first licensed Mexican-American barber. He created a space for all in our community to gather and enjoy life, even when things were hard. I promise that I will work to unite our community toward our shared goals and values: fairness, equality, and progress for all.
We face so many issues in Colorado that make it harder for people to thrive. Our rent and housing costs have skyrocketed, leaving many of us without a safe and secure place to live. Our wages have not kept up with the spike in the cost-of-living. Too many of us lack access to affordable healthcare; adequate food; or the ability to pay down student loans. All of this while right-wing politicians try to undermine basic rights around reproductive healthcare, the LGBTQIA community, and access to the ballot box.
I’m running because the voters of House District 4 deserve a representative who will work to serve them and address issues, not serve themselves by posturing on social media and seeking the limelight. The real problems our community faces like gun-violence, housing costs, climate change, educational inequity, racism, and healthcare access demand a clear, mature, and reasoned look at changing policy. I promise that I will be a representative who puts the people of our community first.
I am proud of my record of getting things done to help others. I am proud to be a Democrat and to have helped so many other great candidates achieve success throughout my life. Now I need your help as an inaugural member of my team.
If there are any questions that aren’t answered by my website, or if you just want to grab a cup of coffee, you can call or text my cell phone at 703-989-9261 or email me at cecelia@cecelia4colorado.com
Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment! “The First Pan” By by W. Sihmedtgen. Public Realm
“Sir Jeffrey” writes:
In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.
CLARIFICATION:While a number of members of the Round Table signed this letter in a “personal capacity,” the Round Table, as an organization did not take a position on this issue.
Signs like the one in this undated image were displayed at various restaurants and other pubic accommodations under a system known as “Juan Crow” laws.Russell Lee / Dolph Briscoe Center for American History
🇺🇸 Due Process Forever!
PWS
11-16-23
UPDATE FROM HON. “SIR JEFFREY” CHASE:
Hi all: The Texas state law was passed by both houses of the Texas legislature, and is expected to be signed into law.
The letter from 30 individual members of this group was specifically mentioned yesterday on CNN’s The Lead with Jake Tapper.
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges Source: Denverdemocrats.orgHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.
The press release of Sen. Michael Bennet included this quote from Cecelia!
“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.
Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎
Rep. Hillary Scholten (D-MI) Credit: Ike Hayman SOURCE: Wikipedia
Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:
“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”
