🤪TWILIGHT ZONE: IN THE SURREAL WORLD OF EOIR, IT’S UP TO NDPA ADVOCATES & CIRCUITS TO ENFORCE LEGAL STANDARDS ON THE “ANY REASON TO DENY” BIA! — Will Lawless, “Trump-Packed Parody Of A Court System” Be Major Legacy Of Former Federal Judge Merrick Garland? — BIA Goes Down Again In 9th Cir!👎🏼

Twilight Zone
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world!
The Twilight Zone Billy Mumy 1961.jpg
:PHOTO: Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 on Standard of Review: Umana-Escobar v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/17/19-70964.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-standard-of-review-umana-escobar-v-garland#

“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”

[Hats off to Sabrina Damast and Jose Medrano!]

 

 

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

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

The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved! 

This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.

When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible, the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable! 

In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials! 

GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️

🇺🇸 Due Process Forever!

PWS

03-20-23

⚖️4TH CIRCUIT:  BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️

Melody Bussey
Melody Busey ESQUIRE
Associate Attorney
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com
Devine & Beard
It should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard
Principal Partners
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

https://www.ca4.uscourts.gov/opinions/201943.P.pdf

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION: Judge Motz

CONCURRING OPINION; Judge Rushing

KEY QUOTE:

In sum, we hold that the BIA and IJ abused their discretion in denying Garcia

Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.

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

Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!

Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels! 

Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.

That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in the Biden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!

When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work. 

Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPA  attorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration! 

The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!

While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.

Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!

Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.”  Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?

Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).

By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why? 

Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?

More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized? 

And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!

In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!

That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!

Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.

The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms! 

Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions! 

🇺🇸Due Process Forever!  

PWS

01-08-21

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

1

adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

2

desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

3

such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

4

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

WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

🍅MORE ROTTEN TOMATOES FOR GARLAND, SESSIONS: NDPA SUPERSTAR 🦸🏻‍♂️🌟 BEN WINOGRAD CREAMS GARLAND’S BIA, OIL IN 4TH CIR! — Sessions’s Wrong Matter of S-O-G- & F-D-B- (Illegally Denying Authority To Terminate) Falls, As OIL Argues Nonsensical Position — Garland’s Continuing Wasteful Failure To Get Control Of Immigration Bureaucracy @ DOJ Squanders Time & Resources, Puzzles Article IIIs, Promotes Arbitrary & Capricious “Justice” @ Justice! — Chavez-Gonzalez v. Garland

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

Here’s the complete opinion by Judge Thacker, joined by Judges Floyd & Harris:

https://drive.google.com/file/d/1MwZtKE73ucoEVTR9HOZcqUWxTB6RfyxK/view?usp=sharing

Here’s my favorite quote from Judge Thacker’s opinion, highlighting Garland’s out of control DOJ immigration bureaucracy! 

This case was argued on September 21, 2021, more than two months after Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021), where AG Garland had refuted Sessions’s legal reasoning! Moreover, the 4th Circuit itself had pointed out the legal flaws in overruling Session’s abominable Castro-Tum, his abuse of AG authority that began this whole sorry episode in American jurisprudence. Yet, OIL argued this case as if nothing had happened and “Gonzo” Sessions were still in charge!

Looking to the character and context of the Government’s litigating position — in stark contrast to its recent regulatory position explained below — we are quite frankly puzzled that the Government currently stands in support of Attorney General Sessions’s decision in Matter of S-O-G-, particularly in light of the fact that Matter of S-O-G- relies heavily on Castro-Tum, which is no longer good law.

To begin with, this court has overruled Castro-Tum in Romero, in which we relied on the broad language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) to hold that the immigration courts possess the authority to administratively close cases. Indeed, the fact that Castro-Tum has been overruled should not only begin the analysis here, but it should definitively end it.

But, beyond the fact that Castro-Tum is now defunct, Attorney General Garland no longer takes the position set forth in Castro-Tum and has since disavowed the idea that the IJs and BIA cannot administratively close proceedings. In Matter of Cruz-Valdez, Attorney General Garland decided, “Because Castro-Tum departed from long-standing practice, it is appropriate to overrule that opinion in its entirety and restore administrative closure” authority to the agency. Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 2021). In doing so, Attorney General Garland noted “three courts of appeals have rejected Castro- Tum” and held that administrative closure is “‘plainly within an [IJ]’s authority’ under Department of Justice regulations.” Id. at 328 (citing Arcos Sanchez v. Att’y Gen. U.S. of

Am., 997 F.3d 113, 121–22 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th 18

USCA4 Appeal: 20-1924 Doc: 54 Filed: 10/20/2021 Pg: 19 of 26

Cir. 2020) (Barrett, J.); Romero, 937 F.3d at 292). Indeed, “[o]nly one court of appeals has upheld Castro-Tum.” Id. (citing Hernandez-Serrano v. Barr, 981 F.3d 459, 464 (6th Cir. 2020). “[B]ut even that court subsequently ruled that [IJs] and the [BIA] do have authority to grant administrative closure in order to permit a noncitizen to apply for a provisional unlawful presence waiver.” Id. (citing Garcia-DeLeon v. Garland, 999 F.3d 986, 991–93 (6th Cir. 2021)). Attorney General Garland’s position on administrative closure in Matter of Cruz-Valdez (and the reasoning behind it) calls into question the Government’s position in this matter and Matter of S-O-G- that IJs and the BIA do not have the inherent authority to terminate proceedings.3

The obvious answer here is that Garland has failed to take the necessary steps to replace the BIA and bring new leadership to OIL.

This should have been “Week One Stuff” after Garland assumed office! Instead, the EOIR system continues to careen out of control, clog the Article III judiciary with semi-frivolous litigation, and destroy human lives! 

How many wrongly-treated respondents are fortunate enough to have Ben Winograd take up their cause, or indeed to have any legal assistance at all? How many can even get to the Court of Appeals to correct Garland’s errors?

The continued dysfunction at EOIR & DOJ is a humanitarian crisis and a threat to our legal system and American democracy! It’s high time for Judge Garland to wake up and treat this mess like the existential crisis it is!

Congrats again to Ben Winograd! Obviously, Garland should have recruited real immigration experts like Ben to be on the BIA or supervise OIL to get this system back on track. Why hasn’t he? 

🇺🇸Due Process Forever!

PWS

10-20-21

⚖️😎👍🏼AFTER FOUR YEARS OF BACKLOG-BUILDING NATIVIST NONSENSE & XENOPHOBIA @ DOJ, JUDGE GARLAND RETURNS THE TOOLS IMMIGRATION JUDGES & PARTIES NEED TO MANAGE & REDUCE IMMIGRATION COURT DOCKETS — “Micromanagement” From DC & Falls Church By Politicos & Toadies Doesn’t Work! 🤮☠️ — Julia Edwards Ainsley 🌟 Reports For NBC News!

Julia Edwards Ainsley
Julia Edwards Ainsley
NBC Correspondent
Justice & DHS
Outside Justice Dep’t
Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/

https://www.nbcnews.com/politics/immigration/garland-reverses-trump-era-immigration-order-move-will-cut-huge-n1274077

IMMIGRATION

Garland reversesTrump-era immigration order in move that will cut huge backlog of asylum cases

The move will cut the ballooning backlog of 1.3 million immigration cases in the U.S. It is Garland’s third such reversal of Trump policy.

July 15, 2021, 1:28 PM EDT

By Julia Ainsley

WASHINGTON — Attorney General Merrick Garland on Thursday reversed an order from Trump’s Attorney Generald Jeff Sessions that barred immigration judges from closing cases and removing them from their docket if they deem them low-priority.

The move will cut down on the ballooning backlog of immigration cases in the U.S., now surpassing 1.3 million, according to data compiled by TRAC out of Syracuse University.

Garland said in his order that immigration judges’ ability to administratively close cases previously allowed “government counsel to request that certain low-priority cases be removed from the immigration judges’ active calendars,” thereby allowing judges “to focus on higher-priority cases.”

Garland previously overturned two other immigration court decisions by his Trump-era predecessors that had made it harder for victims of gang and domestic violence to win asylum.

. . . .

 

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

Thanks, Julia, for highlighting the “cosmic importance” of this decision and its “good  government” potential! Read the rest of Julia’s article at the above link.

🇺🇸⚖️🗽Due Process Forever!

PWS

07-18-21

😎👍YES! IN A HUGE WIN FOR DUE PROCESS, EFFICIENCY, JUDICIAL INDEPENDENCE, & SANE GOVERNMENT, AG GARLAND OVERRULES SESSIONS’S IDIOTIC MATTER OF CASTRO-TUM PRECEDENT & RESTORES IJs’ AUTHORITY TO ADMINISTRATIVELY CLOSE CASES  — Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

Judge Merrick Garland
Atorney General Merrick B. Garland
Official White House Photo
Public Realm

 

The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).

(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.

(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).

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

Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.

Hats 🎩 off to Judge Garland for doing the right thing (even if it did take longer than some of us thought it should)! This also ties in perfectly with the recent common sense restoration of enforcement priorities and prosecutorial discretion at ICE by OPLA head John Trasvina! https://immigrationcourtside.com/category/department-of-homeland-security/immigration-customs-enforcement-ice/office-of-principal-legal-adviser-opla/john-d-trasvina/

After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!

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

Along those same lines, “Sir Jeffrey” Chase reports some more good news:

More Good News!

Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.

It took far too long, but justice prevailed.

Best, Jeff

That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”

It’s a telling commentary that finally getting the law back to where it was in 2016, “pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!

🇺🇸Due Process Forever!

PWS

07-15-21

DIVIDED 3RD CIR. REJECTS CASTRO-TUM, DEEPENING CIRCUIT SPLIT & INCREASING CHAOS RESULTING FROM GARLAND’S FAILURE TO BRING IN “PRACTICAL EXPERTS” TO FIX BROKEN IMMIGRATION COURT SYSTEM & RESTORE BEST PRACTICES! 

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-2-1-says-no-to-castro-tum

Dan Kowalski reports for LexisNexis Immigration Community:

CA3 (2-1) Says “No!” to Castro-Tum

Arcos Sanchez v. Atty. Gen.

“We are fully persuaded that, as discussed in Romero and Meza Morales, the regulations afford IJs and the Board authority to take any action (including administrative closure) as is appropriate and necessary (in the context of each case) for the disposition of such case to resolve questions in a timely and impartial manner consistent with the Act and regulations. After applying the standard tools of interpretation, by considering the text, structure, history, and purpose of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), we hold that the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations. … For the reasons stated above, we conclude that the relevant regulations confer the general authority to administratively close cases to IJs and the Board. We therefore grant the petition for review, vacate the Board’s order, and remand for proceedings consistent with this opinion.”

[Hats off to Jerard A. Gonzalez!]

pastedGraphic.png

 

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

So, the Third joins the Fourth and the Seventh in rejecting Castro-Tum, while the Sixth (wrongly) upheld it. In the other Circuits, Castro-Tum remains in effect “by default.” I’ve received reports, though, that some IJ’s in the Fourth Circuit simply ignore the Circuit precedent, emboldened by the “in your face contemptuous attitude” inculcated by the Trump Administration. Apparently, they fear their “enforcement boss” — the AG — more than life-tenured Article III judges. And, to date, Garland has done little or nothing to dispel that attitude.

Shortly after the election, many experts pointed out to the incoming Biden Administration the critical importance of “hitting the ground running” on EOIR reform: immediately vacating the Sessions/Barr precedents; ousting incompetents and restrictionists from EOIR “management,” replacing the BIA with expert progressive judges who could issue correct guidance and keep nativist judges in line; slashing artificial backlogs; reinstating the NAIJ; establishing progressive criteria for hiring and retaining judges; re-establishing a legal asylum system, particularly at the border; ending misogynistic attitudes and treatment of women of color; and bringing in nationally recognized immigration/human rights experts to reestablish due process and best practices nationwide.

Garland has basically ignored the experts in favor of an incomprehensible “Stephen Miller Lite” program of continued injustice, disrespecting and ignoring the needs of stakeholders and foreign nationals, and promoting chaos, inconsistency, and inept practices.

For example, without Castro-Tum, the majority of cases languishing in the 1.3 million backlog probably would be prime candidates for administrative closing under the Biden Administration’s own criteria of what constitutes a “priority.” Having differing and uncertain rules from Circuit to Circuit, along with tolerating IJs who feel empowered to ignore Circuit law, is a recipe for further disaster.

So far, 75% of the Circuits to consider the question have rightly rejected Castro-Tum. If this plays out, hundreds of thousands of cases will be subject to redos, reconsideration, and reopening because of Sessions’s poor judgment combined with Garland’s failure to engage with the endemic problems in “his” courts.

Due Process Forever!

PWS

05-05-21

 

EXPOSING THE KAKISTOCRACY 🏴‍☠️ — LATEST TRAC “DATA DIVE” SHOWS WHY THERE ARE LIES, DAMN LIES, & EOIR’S “CRIMES AGAINST HUMANITY” ☠️🤮👎 – The Round Table & Other Immigration Experts, As Well As Some Article III Judges, Have Been Saying It Ever Since “Gonzo” Sessions’s Unethical & Dishonest Opinion In Castro-Tum: “TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. [T]he EOIR significantly misrepresented the data it used to justify this rule.”

 

 

Transactional Records Access Clearinghouse

The Life and Death of Administrative Closure 

FOR IMMEDIATE RELEASE

In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that would effectively eliminate administrative closure as a docket management tool for Immigration Judges. The EOIR justified this proposed rule by claiming that administrative closure has “exacerbated both the extent of the existing backlog of immigration court cases and the difficulty in addressing that backlog in a fair and timely manner.” TRAC analyzed the EOIR’s claims as well as the historical data on administrative closure from 1986, and has just published its findings in a detailed report. The link to the report is below.

TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. From FY 1986 to 2020, 6.1 percent (or 376,439) deportation and removal cases had been administratively closed during their lifespan. Each year, between 1 percent and 30 percent of cases are administratively closed, with high percentages of administrative closures during the Reagan and Bush Administrations in the late 1980s and early 1990s and during the Obama Administration between 2012 and 2016.

Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. If the 292,042 cases that are currently administratively closed and not yet recalendared were brought back onto the Court’s active docket, this would suddenly increase the Court’s active workload from its current backlog at the end of July 2020 of 1,233,307 cases to 1,525,349 cases. This would produce a 24 percent jump in the court’s already clogged hearing schedules, pushing the resolution of other backlogged cases off for many additional months if not years.

Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. When cases were administratively closed, recalendared, and decided, most immigrants met the legal standard to remain in the country lawfully. For example, for those cases in which the government was seeking removal orders, six out of ten (60.1%) immigrants met the high legal threshold of remaining in the country. The largest proportion of these had their cases terminated since the Court ultimately found there were no longer valid grounds to deport them. Just three out of ten (30.3%) immigrants were ultimately ordered removed.

Fourth, the EOIR significantly misrepresented the data it used to justify this rule. Specifically, the agency claims to show low numbers of case completions during the Obama Administration and high numbers of case completions during the Trump Administration. In reality, the data behind this argument artificially eliminates cases that were administratively closed. Its argument also fails to recognize that average annual case completions per Immigration Judge have actually declined from 737 closures per judge to 657 per judge during the past four years, not increased, perhaps due to the changes introduced by the current Administration.

Read the full report at:

https://trac.syr.edu/immigration/reports/623/

TRAC’s free web query tools which track Immigration Court proceedings have also been updated through July 2020. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

 

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

“Significantly misrepresented” — That’s a euphamism for “blatantly lied.” Of course, that’s what the head of the regime does on life or death matters. So, I suppose we wouldn’t expect anything else from the “toadies on parade” filling out the kakistocracy.

 

Look, you don’t “jack” the backlog to at least twice its “pre-regime” level with twice the number of Immigration Judges without some pretty grotesque mismanagement, cover-ups, falsification of data, dishonesty, and denial of rights to migrants.

 

Moreover, TRAC specifically shows the “false narrative” peddled by the racists in the Trump regime that administrative closing is some type of “evasion” that is not in the public interest. As Judge Richard Leon would say “poppycock.” It’s exactly the opposite! TRAC finds that “data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status.”

 

Administrative closure is a sane, reasonable, well-established, entirely legal, and absolutely necessary procedure. Gee whiz, one of the original proponents of administrative closure and its aggressive use as a docket management tool was the late first Chief Immigration Judge William R. Robie. Chief Judge Robie was a Republican appointee during the Reagan Administration. He also was a devotee of fundamental fairness and judicial efficiency. He had led a number of professional organizations and was known and respected in the DC Legal Community as a “guru of timeliness and efficient legal administration.”

 

What’s abusive are the illegal tactics, lies, and mismanagement at both DOJ and DHS that have been concocted to justify racist, White Nationalist policies that do not serve the public interest!

Due Process Forever!

 

PWS

09-10-20

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

Here’s an Addendum from Margaret Stock:

From: Margaret Stock [mailto:MStock@CASCADIALAWALASKA.COM]
Sent: Saturday, September 12, 2020 10:17 AM
To: Benson, Lenni B.
Cc: Immprof (immprof@lists.ucla.edu)
Subject: Re: [immprof] FW: The Life and Death of Administrative Closure

The Administration is most definitely putting out misleading information (as usual). Example: one often overlooked “administrative closure” group has been members of the US military who got tossed into removal proceedings for one reason or another (usually because of a referred asylum case or failure to file an I751 or denial of an I751 by USCIS). They almost always naturalize after being put into proceedings, then reopen and terminate. Lately, they’ve had to hire a lawyer to keep showing up at master calendar hearings, usually for a couple of years. The judges can’t hear the case because they’ve got naturalization applications pending. But the judges have to keep wasting docket time on them because there’s no such thing as admin closure anymore. It’s foolish and costly for the service members.

Sent from my iPhone

 

 

 

JEFF “GONZO APOCALYPTO” SESSIONS  ILLEGALLY STRIPPED IMMIGRATION JUDGES OF AUTHORITY TO CLOSE CASES – 7th Cir. Shreds White Nationalist Former AG’s Bogus “Precedent” in Matter of Castro-Tum — Meza Morales v. Barr

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

 

Dan Kowalski reports from LexisNexis Immigration Community:

 

Immigration Law

Daniel M. Kowalski

26 Jun 2020

CA7 Rejects Castro-Tum!

Meza Morales v. Barr

“We … reject CastroTum and hold that immigration judges are not precluded from administratively closing cases when appropriate.”

[Hats off to Chuck Roth!]

 

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

The Fourth Circuit also has stomped Gonzo’s illegal and unethical interference with Immigration Judges’ authority to manage their dockets isn a previous very forceful rejection  Castro-Tum:

“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”

“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed  — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”

Zuniga Romero – CA4 Decision (8-29-2019)

ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published

PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.

OPINION BY: Judge Agee

KEY QUOTE:

In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.

*** *

In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.

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

A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit.  Our brief was, of course, ignored by  “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.

Finally, an Article III Court  “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!  

The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.   

With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts. 

Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.

PWS 

08-29-19

 

When, oh when, will the Circuit Courts finally put an end to this clearly unconstitutional nonsense and never-ending exhibition of malicious incompetence called EOIR. Taking it apart piece by rotten piece is both wasteful of judicial resources and highly unfair to the many individuals prevented by EOIR’s systematic misconduct and a biased system from even reaching the Courts of Appeals.

 

PWS

 

06-27-20

 

 

NDPA SUPERSTAR PAULINA VERA REPORTS @ GW LAW CLINIC: More Big Arlington Immigration Court Victories!

Paulina Vera
Paulina Vera
Professorial Lecturer in Law
GW Law

 

Paulina reports:

 

Good afternoon,

 

I am excited to announce two recent Immigration Clinic wins!

 

1) On December 4th, Judge Deepali Nadkarni of the Arlington Immigration Court granted administrative closure in an Immigration Clinic case. The client, A-M-, and his wife, P-M-, are both represented by the Clinic in their respective cases. P-M- has pending U and T visa applications before USCIS, which are for victims of crimes and trafficking victims, respectively. P-M-‘s applications are based on horrific childhood sexual abuse she suffered at the hands of her stepfather. A-M- is a derivative on P-M-‘s application; however, A-M- is in removal proceedings and Immigration Judges do not have jurisdiction over these types of applications.

 

Under this administration, administrative closure has been taken away as a docket management tool, which allowed for individuals waiting for decisions on cases before USCIS to have their removal proceedings “paused.” The 4th Circuit disagreed and recently upheld Immigration Judges’ right to use administrative closure.

 

Judge Nadkarni commented on student attorney, Samuel Thomas, JD ’20, “very large” filing and issued a written decision a few weeks after a brief hearing. A-M- will now be able to stay in the U.S. with P-M- and their three small U.S. citizen children while they wait for a decision on the U and/or T visas.

 

Please join me in congratulating student-attorneys Samuel Thomas, who filed the motion for admin closure, and Madeleine Delurey, JD ’20, who filed the U and T visas for P-M-!

 

2) On December 23, 2019, I won a hearing for Cancellation of Removal for Certain Permanent Residents for our client, M-D-C-. M-D-C-, born in Chile, has been a permanent resident for over 29 years but was put into removal proceedings because of several criminal convictions in his record, the last of which took place 15 years ago. M-D-C- is currently on a heart transplant list and has very close relationships with his U.S. citizen wife and daughter. In fact, his daughter, C-D-C-, stated in her affidavit, “I owe a lot of the woman I have become and am to [my dad] and I love him with my whole heart.” Immigration Judge Wynne P. Kelly called the case “close” and said that he was “granting by a hair” after a three-hour hearing where both wife and daughter testified.

 

Please join me in congratulating Clinic alum, Chris Carr, JD ’17, and student-attorney, Amy Lattari, JD ’20, who both worked on the case with me. A special shout-out goes to Clinic alumna, Anam Rahman, JD ’12, who assisted in mooting M-D-C- and family.

 

Best,

 

Paulina Vera, Esq.

Professorial Lecturer in Law 

Acting Director, Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic

The George Washington University Law School
2000 G St, NW
Washington, DC 20052

 

 

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

Many congrats Paulina, Samuel, Madeline, Chris, Amy, and Anam! Due Process is indeed a team effort!

As a number of us in the Round Table of Former Immigration Judges have observed, even under today‘s intentionally adverse conditions, justice is still achievable with 1) access to well-qualified counsel, and 2)  fair, impartial, and scholarly Immigration Judges with the necessary legal expertise.

Unfortunately, the Trump Regime, in its never-ending “War on Due Process,” has worked tirelessly to make the foregoing conditions the exception rather than the rule.

Hats off once again to Judge Deepali Nadkarni who resigned her Assistant Chief Judge position to go “down in the trenches” of Arlington and bring some much-needed fairness, impartiality, scholarship, independence, and courage to a system badly in need of all of those qualities!

This also shows what a difference a courageous Circuit Court decision standing up against the scofflaw nonsense of Jeff Sessions and Billy Barr, rather than “going along to get along,” can make. One factor greatly and unnecessarily aggravating the 1.3 million + Immigration Court backlog is the regime’s mindlessly filling the docket with re-calendared and other “low priority/high equity” cases that should be closed and remain closed as a proper exercise of prosecutorial discretion. Sessions’s Castro-Tum decision, soundly rejected by the 4th Circuit in Zuniga Romero v. Barr, is one a number unconscionable and unethical abuses of authority by Attorney Generals Sessions and Barr.

PWS

01-05-19

 

MALICIOUS INCOMPETENCE:  SESSIONS & BARR ERADICATED DUE PROCESS WHILE DOUBLING THE IMMIGRATION COURT BACKLOG: “[S]uch backlogs result when ‘the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.'”  – Complicit Article III Appellate Courts Are Likely To End Up With The Absolute Disaster They Enabled!

 

Danae King
Danae King
Faith & Values & Immigration Reporter
Columbus Dispatch

https://apple.news/AbprF_RZWSBmtsn5WT35I_w

 

By DANAE KING, THE COLUMBUS DISPATCH

 

Immigration court backlog has nearly doubled under Trump

November 25, 2019 05:00 PM EST

The nation’s backlog of active  immigration court cases has surpassed the 1 million mark and has nearly  doubled since President Donald Trump took office, a new analysis shows.  In Ohio, 12,851 cases are pending in Cleveland’s immigration court,  which includes Columbus-area cases. That’s up from 3,295 in 2009.

While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.

The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.

“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.

Nationwide, the backlog has almost doubled, from 542,411 pending cases when  President Donald Trump took office in January 2017 to just over 1  million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.

In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.

Hearings are scheduled in the Cleveland court through Dec. 30, 2022.

Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.

Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on  immigrants and puts enforcement ahead of due process and civil rights.”  

“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.

Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s  immigration court isn’t the worst in the country. In areas such as New  York, Chicago and Philadelphia, immigrants are waiting an average of  1,450 days, or just under four years, to see a judge.

Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.

“The decision to reopen previously closed cases has single-handedly  exacerbated the immigration court crisis, yet it has not received  sufficient attention,” the TRAC report states. “This single policy  decision has caused a much greater increase in the court’s backlog than  have all currently pending cases from families and individuals arrested  along the southwest border seeking asylum.”

Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country  illegally a priority for deportation. The norm had been to prioritize  those who had committed crimes.

“It is a senseless waste of  taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus  immigration lawyer, told The Dispatch in an email.

She said U.S. Immigration and Customs Enforcement should close deportation cases involving long-term U.S. residents who are not dangerous.

The Executive Office for Immigration Review, the Department of Justicebranch that supervises the federal immigration court system, did not respond to requests by The Dispatch for comment.

The backlog has grown despite the Trump administration having given the  immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.

The nation has 442 immigration judges, according to TRAC.  Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who  have left have expressed feeling like the Trump administration doesn’t  allow them to do their jobs properly while adding quotas and  micromanaging their work.

Each judge has about 2,000 cases, according to TRAC.

In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than  once a month.

Hiring more judges hasn’t fixed the backlog, Bittner said.

“It is very frustrating because justice delayed is justice denied, and  while foreign nationals wait years for the adjudication of their cases,  they are putting down roots here and having families, which makes  removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.

She said some of her clients  are grateful for the wait because they have more time to build a life  here. Others, however, are frustrated, Bittner said, because they feel  that they are constantly in limbo, and once they’ve built a life, it  could all come crashing down when their day in court finally arrives.

A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.

“It just seems to be getting worse,” Bittner said.

 

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Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!

And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”

It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.

The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!

We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!

 Constantly Confront Complicit Courts 4 Change!

 Due Process Forever; Complicit Courts Never!     

 

PWS

 

11-26-19

 

“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”


“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed  — “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”

Zuniga Romero – CA4 Decision (8-29-2019)

ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published

PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.

OPINION BY: Judge Agee

KEY QUOTE:

In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.

*** *

In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.

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A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit.  Our brief was, of course, ignored by  “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.

Finally, an Article III Court  “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!  

The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.   

With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts. 

Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.

PWS 

08-29-19

KANGAROO COURT UPDATE: ICE’S OPLA MAKES IT OFFICIAL: Castro-Tum Made Immigration “Judges” ICE Factotums — ICE Counsel Told That Any Attempt By Your Local Factotum To Disobey Your Orders & Exercise “Independence” Should Be Reported To Higher Authorities Immediately (If Not Sooner)!

Factotum = a servant, retainer – a person working in the service of another (particularly in the household)

 

Here’s the memo — demeaning and insulting U.S. Immigration Judges in exactly the way that Sessions intended:

https://www.dropbox.com/s/9h1k4942zcomwku/Castro%20Tum%20OPLA%20guidance.pdf?dl=0

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Bottom line: “Sessions made it clear that we at ICE control the Immigration Judges, their dockets, and their priorities. If they get out of line, report ’em. We’ll all working on the “Trump/Sessions Deportation Express.” And we at ICE are the Conductors. The “Judges” are just porters to carry our baggage.

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Talk about feckless!

I think that it’s critical that advocates work documents like this into their Article III briefs and arguments. It’s important to let  “real” judges know that notwithstanding fancy titles and outward appearances, the “Immigration Court” is not a real independent court system that can be expected to provide Due Process, or even care about it on a systemic basis, for that matter.

It’s a “captive” of Chief Child Abuser Jeff Sessions who has directed it to carry out his prosecutorial (and overall racist) program of dehumanization and bias against the most vulnerable and defenseless among us. In no way, shape, or form, can a court system selected, directed, and evaluated by Jeff Sessions and his biased minions be considered to provide the “fair and impartial adjudication” required by the Due Process Clause.  Article III Judges must be (politely) confronted with their own complicity when they approve any removal order entered by this inherently corrupt, unethical, and unfair system.

Yes, there are many dedicated and conscientious Immigration Judges out there.  But, they have been ordered to carry out Sessions’s enforcement vendetta, stripped of all meaningful authority to control their dockets, and told they are being watched to make sure they are “with the program”  — which in Sessions’s own words is all about “volume” – not fairness, not quality, not scholarship, not empathy, not human understanding, not respect — nope “volume” which has nothing whatsoever to do with individual justice. How would you like to trust your life to a judge working under those conditions.

Almost every day, Jeff Sessions provides clear public evidence of his bias and total unsuitability for any public office, let along one purporting to run a “court system.”

PWS

06-18-18

 

 

SPLC ON THE POLITICS OF HATE & BIGOTRY: 1) SESSIONS DISSES DUE PROCESS BY TRASHING ADMINISTRATIVE CLOSING; 2) TRUMP’S NATIVIST RHETORIC “OVERLAPS” HATE CRIMES AGAINST MINORITIES!

SPLC STATEMENT ON SESSIONS’ DECISION TO CURTAIL ‘ADMINISTRATIVE CLOSINGS’ OF IMMIGRATION COURT CASES

Attorney General Jeff Sessions’ ideologically driven decision today to bypass the immigration courts and decide himself to remove another avenue of relief for immigrants undermines due process and the rule of law.

It will add thousands more cases back into the huge backlog of the immigration courts, and will result in the imprisonment and deportation of immigrants who now have a clear path toward legal immigration status.

This decision is just further evidence of Sessions’ anti-immigrant agenda, which separates families, creates fear in communities, and punishes vulnerable people who may be fleeing violence and persecution in their home countries. Though President Trump may call them “animals” to justify his administration’s inhumane policies, these immigrants are friends, neighbors, and members of our families and communities.

With every new hate-driven policy emerging from this administration, we must rededicate ourselves to speaking out and taking action to preserve our nation’s fundamental values.

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How Trump’s nativist tweets overlap with anti-Muslim and anti-Latino hate crimes

Words matter. Heated political rhetoric, especially derogatory language toward groups of people, can create all kinds of unintended consequences, including sometimes physical violence.

When individuals of influence, including political candidates and heads of state use such words, the consequence can be especially pronounced.

In the run-up to, and since his election as President of the United States, Donald Trump’s words have attracted a lot of attention. Many commentators and activists have charged that Trump’s rhetoric has fueled hate crimes in the United States against minorities. Until recently, many individuals voicing such concerns pointed to high-profile individual cases, rather than systematic data. Now that’s changing as new research is emerging.

Hatewatch spoke with Karsten Muller and Carlo Schwarz, two researchers at the University of Warwick in the United Kingdom who have been studying the impact of hate speech on social media and how that translates to hate crimes in the real world. Muller and Schwarz discuss their latest study, “Making America Hate Again? Twitter and Hate Crime Under Trump”

Their study used Twitter and FBI hate crimes data to come to a stark conclusion: hate crimes against Muslims and Latinos occurred shortly after Trump made disparaging tweets about Muslims and Latinos. Moreover these anti-Muslim and anti-Latino hate crimes were physically concentrated in parts of the country where there is high Twitter usage.

Karsten and Carlo, can you give us an overview of your research interests and your recent study on President Trump’s tweets and Muslim hate crimes?

Carlo: We are economists working in slightly different areas, but we both have an interest in what people usually call political economy. What we try to do is to apply modern quantitative methods to study political outcomes and the role of social media. In our most recent study, we find that the number of anti-Muslim hate crimes in the U.S. has increased quite markedly under Trump. We show that this increase started with the beginning of Trump’s presidential campaign and is predominately driven by U.S. counties where a large fraction of the population uses Twitter. The data also show that this increase cannot be easily explained by differences in demographics, votes for Republicans, crime rates, media consumption or other factors.

Karsten: The second thing we do in the paper is to look at the correlation between Trump’s tweets about Islam-related topics and hate crimes that target Muslims. And what we find is that this correlation is very strong after Trump had started his campaign, but basically zero before. We also find that when Trump tweets about Muslims, hate crimes increases disproportionately in those areas where many people use Twitter. It is also important to note that hate crimes against Muslims were not systematically higher in those areas during previous presidencies, so it seems unlikely we are simply capturing the fact that people in some areas dislike Muslims more than in others.

Are you claiming Trump’s tweets have caused hate crimes?

Karsten: We are very careful not to make that claim in the paper because I think it is extremely hard to tell based on our data. After all, we are not looking at a controlled laboratory experiment so there is always room for other drivers. But if you look at the results, some point in that direction, for example that Trump’s tweets are particularly correlated with future hate crimes in counties where many people use Twitter.

Carlo: A simple thing to do here is to think about what alternative stories could explain our findings. For example, one could imagine that people who Trump himself follows (such as Fox & Friends or Alex Jones) are the real driving factor. Or that people have recently become more radicalized in rural areas, or where the majority votes Republican. But a careful look at the data reveals that Twitter usage is in fact lower in counties where people tend to vote Republican and in rural areas, and we use some survey data to show that Twitter users generally prefer CNN or MSNBC over Fox News. These factors also cannot easily explain why the increase in anti-Muslim hate crimes should occur precisely with Trump’s campaign start and not before or after.

Karsten: So overall, we take our findings as suggestive of a potential connection between social media and hate crimes. But at the end of the day, readers have to make up their own minds.

What were some of the other key findings that stood out with regard to Muslims?

Karsten: What really stands out to me is just how strong the correlation of Trump’s tweets is with future anti-Muslim hate crimes. So, for example, one might be worried that Trump simply tweets about Muslims when people are generally very interested in everything related to Islam. But what we find is that Trump’s tweets are correlated with hate crimes even if we first even if we control for the effect of general attention to Islam-related topics (as measured by Google Searches). Although there are other explanations, I also found it striking that you see a spike in hate crimes against Muslims in the week of the Presidential election, but only in areas where many people use Twitter.

Carlo: Another thing I found quite interesting is that Trump’s tweets about Muslims are not correlated with other types of hate crimes. The reason this is important is because one could easily imagine that people just happen to be particularly angry at minorities in some weeks compared to others, and that Trump is just part of that. But if this was true, we would also expect there to be more hate crimes against Latinos, or LGBTQ people or African Americans, which does not seem to be the case at all. We also do not find any evidence that other types of hate crimes increased in areas with many Twitter users around Trump’s campaign start — except a small shift for anti-Latino crimes.

Your study also noticed a statistically significant association between anti-Latino tweets and hate crimes. Why do you think there has been a similar, but less robust set of results?

Karsten: When we started our study, we only had data on hate crimes until the end of 2015 — after Trump’s campaign started in June 2015, but before his election. And what you see in the data is a very strong correlation between Trump’s tweets about Latinos and subsequent anti-ethnic hate crimes starting with the beginning of his campaign until December 2015, while there is virtually no correlation before. After the 2016 data were released, we found that the effect becomes substantially weaker from around mid-2016 onwards.

Carlo: When we looked at that more closely — and we think that is consistent with the media coverage during that time as well — Trump toned down his anti-Latino rhetoric quite a lot in the run-up to the campaign. There was, for example, his tweet with a taco bowl on Cinco de Mayo 2016. If you go through Trump’s Twitter feed in the pre-election period, you will see only a handful tweets about Latinos at all during that time. And while hate crimes against Latinos remained slightly elevated in areas with many Twitter users during that time, that means the correlation with the timing of Trump’s tweets became weaker. A potential interpretation is that it is not that the results are so much weaker than those for anti-Muslim hate crime, it’s just that Trump essentially stopped tweeting negative things about Latinos.

How does this study compare and contrast with your earlier investigationinto the online activities of the far-right and nativist political party Alternative for Germany (AfD)?

Carlo: In our study on Germany, we found a very similar correlation between posts about refugees on the AfD’s Facebook page and crimes targeting refugees. We look at these two studies as complementary, even though they use somewhat different methodologies. In the German setting, we have very granular data on internet and Facebook outages that we can use as “quasi-experiments” to get at the causal effect of social media. And what we found there is that, even if you compare neighboring cities, refugees are more likely to be victims of violent attacks where many people use social media, particularly when tensions are high. Importantly, these are relative effects.

What is different for the U.S. is that we find this link between Trump’s campaign start and the increase in the absolute number of hate crimes against precisely those minorities in his verbal crosshairs (e.g. Muslims and Latinos), making the link by using Trump’s tweets. and FBI hate crimes dataset. By using the FBI hate crimes statistics, it also allow us to compare the recent change in hate crimes to those under presidents since 1990s.

For civically conscious users of the internet, what are the most important takeaways and implications from your research?

Carlo:  On one hand, our goal is to suggest that politicians should not ignore social media, because the correlation with real-life hate crimes seems to be pretty strong. We think that this discussion should be taken seriously. On the other hand, we want to caution against any attempts at censorship. Some countries have an outright ban on certain social media platforms, and these states are usually not known for their open political discourse and freedom of speech. The challenge is to come up with solutions that can help protect citizens from violent extremists without imposing drastic limits on freedom of expression. In the end, the people who actually commit hate crimes are the ones we have to hold accountable.

Karsten: I want to give a somewhat different perspective here. Many people talk about a potential “dark side” of social media, but the number of studies that have actually looked at this issue with data is surprisingly small. One of the most important takeaways for me is that as a society we should be spending more time and resources to support researchers working on this area. It is clearly something that many people care about, and it matters tremendously for policymakers as well.

What do you plan to do next in your research?

Karsten: We think a big open question is to come up with more concrete ways of measuring whether “echo chambers” on social media really exist, and how they differ from echo chambers in other domains. If social media is indeed different, the question is what can be done to get people to consider information from outside of their bubble. Our data for Germany in particular will hopefully also allow us to show how exactly online hate on Facebook is transmitted in practice.

Illustration credit: zixia/Alamy Photo

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Trump is certainly the wrong man for the job at this point in our history.

PWS

05-26-18

 

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

  • In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
  • I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
    • According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
    • In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
    • The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
      • Had been granted DACA status by USCIS;
      • Had been granted TPS by USCIS;
      • Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
      • Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
    • Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
    • Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18