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

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

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

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

Suzanne writes in Law360:

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

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

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

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

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

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

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

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

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

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

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

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

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

High Rates of Asylum Denials

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

Due Process Forever!

PWS

05-11-20

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

Laura Lynch of AILA reports:

Hi all-

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

Philip Montante- Batavia NY

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

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

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

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

Laura A. Lynch, Esq.

Senior Policy Counsel

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

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

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

Due Process Forever! Star Chambers, Never!
P

PWS

05-02-20

“TILL DEATH ☠️⚰️ DO US PART” — EOIR CAN CONTINUE OPERATIONS DESPITE COVID-19: U.S. District Judge “Stuffs” Immigration Bar’s Pleas For Better Protections!

https://www.law.com/nationallawjournal/2020/04/28/federal-judge-says-he-cant-order-immigration-courts-to-close-over-covid-19/?kw=Federal%20Judge%20Says%20He%20Can%27t%20Order%20Immigration%20Courts%20to%20Close%20Over%20COVID-19&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20200428&utm_term=nlj&slreturn=20200328111724

Jacqueline Thomsen reports for the National Law Journal:

A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.

U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.

He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.

Nichols wrote that “the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings.” But he found the detained immigrants named in the suit do not have “an imminent in-person hearing,” and therefore lack standing.

“More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action,” Nichols wrote.

The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.

Nichols said the lawyers “fail to explain” how the policies have caused the immigrants “to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.”

He further said the immigration lawyers have failed to show that “immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings.”

. . . .

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

Those with access to the NLJ (everyone can get 3 free “non-premium” articles per month by registering) can read Jacqueline’s full article and get Judge Nichols’s full opinion at the above link.

A slight clarification of the last sentence in Jacqueline’s full article: “Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.”

Immigration Judges are “administrative judges” who work for the Attorney General. Unfortunately, they are not “Article I Judges,” which would make them a true independent judiciary.

Immigration Judges would like to be Article I Judges. Most immigration and judicial experts agree that they should be. There are a number of legislative proposals circulating to establish an independent Article Immigration Court. But, alas, notwithstanding the obvious and pressing need, Congress is nowhere close to legislating the necessary change.

So, these current blatantly unconstitutional “captive courts” operating under the DOJ will continue to stagger on, taking innocent lives and trampling due process and fundamental fairness in the process. Grimly, as I had predicted, it’s apparently going to take some actual dead bodies⚰️of migrants and perhaps their lawyers piling up on the courthouse steps to get either the Article IIIs or Congress to pay serious attention to this unfolding disaster which seems to operate just enough beneath their “radar screens” to allow them to ignore or, as in this case, paper it over.

Due Process Forever! Captive Courts Never!

PWS

04-28-20

LAURA LYNCH @ AILA REPORTS: 1) NAIJ Takes Unprecedented Step Of Filing Amicus Brief In Pending USDC Litigation On Immigration Courts; 2) The Dangerous Clown Show 🤡 Continues At EOIR! ☠️⚰️

Flagging the following updates:

(1) Last evening, NAIJ filed an amicus brief in NIPNLG et. al. vs. EOIR et. al..

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

(2) Also see Government Executive article below.

Erich Wagner
Staff Writer
Government Executive

Despite Coronavirus, ‘The Machinery Continues’ at Immigration Courts – April 20, 2020

Immigration judges and employees at the Executive Office of Immigration Review said the agency’s informal policy to keep offices and courts open puts deportations over workers’ safety.

APRIL 20, 2020 05:31 PM ET

For weeks, employees at the Executive Office of Immigration Review’s immigration courts and offices have noticed a trend: whenever someone exhibits coronavirus symptoms, the agency quietly shuts the facility down for a day or two, cleans the office, and then reopens.

The frequency of these incidents, combined with the apparent refusal by management to take more proactive steps, like temporarily closing immigration courts altogether or instituting telework for EOIR support staff, have employees and judges fearing that the Trump administration is more concerned with keeping up the volume of immigration case decisions than the health of its own workforce.

Since Government Executive first reported on an instance of an employee with COVID-19 symptoms at a Falls Church, Virginia, EOIR office last week, there have been three additional incidents at that facility, including one where the person eventually tested positive for coronavirus. An office in the Dallas-Fort Worth area also was closed for two days in March after someone exhibited symptoms of the virus.

Additionally, the agency has announced on its official Twitter account more than 30 immigration court closures, most only for one or two days, across the country. Although in most instances officials do not explain the closures, National Association of Immigration Judges President Ashley Tabaddor said that if there is no reason listed, “you can be sure” it is a result of coronavirus exposure.

“Everything is reactive,” Tabbador said. “They put everyone at risk, and then when there’s an incident reported, they shut down the court for a day and then force people to come back to work. At Otay Mesa [in San Diego] there’s a huge outbreak, but they still haven’t shared that information . . . Sometimes we get the info and sometimes we don’t, so we don’t know how accurate or complete it is. There’s no faith that everyone who needs to be notified has been notified.”

Nancy Sykes, president of the American Federation of Government Employees Local 2525, which represents staff at EOIR’s office in Falls Church said the amount of information provided to employees about coronavirus-related incidents has actually decreased in recent weeks. Although after the first incident, EOIR Director James McHenry emailed staff and provided information about when the employee was symptomatic and in the office, subsequent notifications were sent out by Acting Board of Immigration Appeals Chairman Garry Malphrus and omitted key information about when symptomatic individuals were in the building.

“Employees are scared, they’re concerned,” Sykes said. “They don’t really trust what’s coming from management just because of the lack of details being shared. There’s a lag in information: by the time something is revealed, so much time has passed, so nobody’s clear how that process works and why it takes so long to get notice out to employees.”

In a statement, EOIR spokeswoman Kathryn Mattingly said that the agency “takes the safety, health and well-being of employees very seriously,” but that the workforce is critical to ensuring the due process of detained suspected undocumented immigrants.

“Accordingly, EOIR’s current operational status is largely in line with that of most courts across the country, which have continued to receive and process filings and to hold critical hearings, while deferring others as appropriate,” Mattingly wrote. “Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few courts have closed completely.”

A Series of Half Measures

Agency management has taken some steps to mitigate employees’ exposure to COVID-19. On March 30, the agency postponed all hearings related to individuals who are not being detained while they await adjudication. The agency is also encouraging the use of teleconferencing, video-teleconferencing and the filing of documents by mail or electronically, and some attorneys, paralegals and judges have been able to make use of telework to reduce the amount of time they spend in the office.

But thus far, the agency has refused to postpone hearings for detained individuals, a matter that is now the subject of a federal lawsuit brought by immigration advocates and attorney groups. And the agency has denied telework opportunities to support staff in EOIR offices and immigration courts across the country.

Sykes said the lack of telework is in part a capacity issue—the agency does not have the amount of laptops on hand to distribute to employees. But she suggested that local management may be prohibited from encouraging workplace flexibilities by agency or department leadership.

“We’ve asked management about doing something where you could have employees come in shifts every other day, or over a week’s time in rotation to pick up and drop off work materials, so that there’s less exposure when coming into the office,” she said. “But they said they have not been authorized to make those types of changes to our business. When my board management says they don’t have the authority, that means it’s over their heads.”

Tabaddor said she has heard similar stories that everything judges and supervisors authorize regarding coronavirus response must be “cleared” by someone up the chain of command.

“Supervisory judges, our first line of supervisory contact, they were told that they cannot put anything in writing about the pandemic or COVID,” she said. “Anything they want to do related to that has to be cleared by HQ and, essentially, the White House. So, to date, they haven’t been told what standards and protocols are to be used. The only thing they’ve been told is if there’s a report of any incident, they are to kick it up to HQ and wait for instructions.”

On Monday, McHenry sent an email to EOIR employees announcing that the agency has ordered face masks for employees to wear when they report to the office, and said they would be available “next week.”

“Once delivered, supervisors will provide their staff with information regarding distribution to employees who are not telework eligible and are working in the office,” McHenry wrote. “Even while using face coverings, however, please continue to be vigilant in maintaining social distancing measures to the maximum extent practicable and in following CDC guidance.”

Production Over People

Agency employees said what they have seen over the last month suggests that the agency is prioritizing working on its more than 1 million case backlog, and enabling the Homeland Security Department to continue to apprehend suspected undocumented immigrants, at the expense of the wellbeing of its workforce.

“Everything is designed under the rubric that the show must go on,” Tabbador said. “While we’ve been focused on public health first . . . the department says, ‘Nope, we need to make sure that the machinery continues. To the extent that we can acknowledge social distancing as long as business continues, we can do it. But between business and health considerations, business as usual supersedes health.”

Sykes said the agency’s resistance to making basic changes to protect its employees is troubling.

“To me, the only other explanation is the immense backlog that we have of immigration appellate cases building up, and the need to continue working on that backlog even in light of the current pandemic,” she said. “It’s very unnerving, because I believe this will continue, and I don’t have any other indication that we’re not going to just continue operations as is. We now finally have a confirmed case [in the building] and there’s still no change.”

In an affidavit filed in response to the lawsuit seeking to postpone immigration court hearings for detained individuals, McHenry said he has given individual immigration courts leeway to respond as needed to the COVID-19 outbreak in their communities.

“Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court,” McHenry wrote. “In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a ‘one size fits all’ policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and means through which to hold hearings.”

But he also suggested it could hamper the work of Immigration and Customs Enforcement and the ability of the Border Patrol to keep arresting suspected undocumented immigrants.

“The blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an [immigration judge] that may lead to the alien’s release,” he wrote.

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

Thanks, Laura, for “packaging” this so neatly for further distribution! And many thanks to Erich Wagner over at Government Executive for “keeping on” this story he originally reported and that I also posted @ Courtside. https://wp.me/p8eeJm-5mO

Nice to know that someone is looking out for the public interest here, even if EOIR isn’t.

Wow, these self-serving “GrimGrams” ☠️⚰️ from McHenry must be very comforting to the EOIR employees 😰🧫 whose health 🤮 and safety ☠️ is on the line, not to mention the possibility that they will eventually infect their own families.😰

Deportations over safety, sanity and public health at EOIR. It’s just “business as usual” in the Clown Courts! 🤡

We should also take McHenry’s claims that he’s anxious to get folks out on bond with a big grain of salt. 🤥🤥🤥🤥🤥 Just recently, the BIA went out of its way to insure that even asylum seekers who had established “credible fear” of persecution would be unlikely to get released on bond. See, e.g., https://immigrationcourtside.com/2020/04/06/hon-jeffrey-s-chase-matter-of-r-a-v-p-bond-denial-maximo-cruelty-minimal-rationality-idiotic-timing-bonus-my-monday-mini-essay-how-eoir/

After all, we must remember that the only function of these bogus “courts” at EOIR under the Trump regime is to serve the supposed needs of their “partners” and overlords at DHS Enforcement 👮🏼. But, it’s fair to point out that many ICE employees also don’t see the need to put their lives and the lives of others at risk merely to “punch one more ticket” for the Deportation Railroad. 🚂 See, e.g., https://immigrationcourtside.com/2020/04/04/as-u-s-district-judges-dither-dysfunctional-immigration-courts-threaten-nations-health-safety-i-think-its-about-time-the-american-people-woke-up-to-the-fact-that-eoir/

Due Process Forever! Clown Courts 🤡 Never!

PWS

04-21-20

BREAKING: AILA FILES FOR TRO AGAINST DANGEROUS PRACTICES BY DHS & EOIR — Says U.S. Government Needlessly & Recklessly Putting Lives At Risk During Pandemic! ☠️☠️⚰️⚰️🆘🆘

For Immediate Release

Wednesday, April 8, 2020

Contact:

Maria Frausto, mfrausto@immcouncil.org, 202-507-7526

George Tzamaras, GTzamaras@aila.org, 202-507-7649

Sirine Shebaya, sshebaya@nipnlg.org, 202-656-4788

Temporary Restraining Order Requested to Stop Dangerous EOIR and ICE Policies During the COVID-19 Pandemic

WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.

Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.

EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.

A copy of the motion for the emergency temporary restraining order is available at the link here.

###

The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.

Laura A. Lynch, Esq.

Senior Policy Counsel

American Immigration Lawyers Association

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

Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.

Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.

Let’s hope for the best!

Due Process Forever!

PWS

034-08-20

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

https://apple.news/AHVHlXYP_N1SlC2OPsFNIJQ

Kelly Donohue reports for Cronkite News/NPR:

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

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

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

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

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

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

Yet all detained migrants still remain in federal custody.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cronkite News

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

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Video by Frankie McLister/Cronkite News

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

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

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

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

. . . .

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

Read Kelly’s full article at the link.

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

Mr. Peanut Devouring His Son
By Nina Matsumoto

PWS

04-07-20

GOVERNMENT IN FAILURE: AILA SUES IN DC US COURT TO FORCE DHS AND EOIR TO TAKE COMMON SENSE MEASURES TO PROTECT THE PUBLIC IN IMMIGRATION COURT AND THE GULAG — Unlawfully Deporting Helpless Kids Is a Cinch For The Regime, But Protecting The American Public In The Time of Pandemic, Not So Much!

For Immediate Release Contact:

Monday, March 30, 2020 Maria Frausto, mfrausto@immcouncil.org, 202-507-7526

George Tzamaras, GTzamaras@aila.org, 202-507-7649

Sirine Shebaya, sshebaya@nipnlg.org, 202-656-4788

Lawsuit Seeks Halt to Dangerous and Unconstitutional Policies Endangering Immigration Attorneys, Clients, and the Public During the COVID-19 Pandemic

WASHINGTON, DC—In a lawsuit filed today in the U.S. District Court for the District of Columbia, several immigration lawyer groups and individuals with pending immigration cases demanded that the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) take immediate necessary actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.

The American Immigration Lawyers Association (AILA), the Immigration Justice Campaign— a joint initiative of the American Immigration Council and AILA—represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) call for the government to take the following measures:

suspend in-person immigration hearings for detained individuals and provide robust remote access alternatives for detained individuals who wish to proceed with their hearings for the duration of the COVID-19 pandemic;
guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives;
provide Personal Protective Equipment for detained noncitizens and legal representatives who need to meet in person in facilities where PPE is required for entry;
alternatively, release detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or with the immigration court.
The global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. The Centers for Disease Control and Prevention has specifically highlighted in-person court appearances as a risk factor for coronavirus outbreaks. Federal courts and the Bureau of Prisons via the Attorney General have taken measures to minimize the health risk. Yet, EOIR, a component of DOJ which oversees immigration courts, has not taken the same protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. The CDC has also highlighted the particularly acute dangers of COVID-19 outbreaks in detention, and more than 3,000 public health experts have called for the release of immigrants from detention. However, ICE has refused to take measures to release or protect immigration detainees from harm and continues to transport them back and forth from courthouses while denying them critical access to counsel during this crisis.
AILA Director of Federal Litigation Jesse Bless stated, “Simply put, EOIR and ICE need to adopt flexible measures to ensure safety for respondents and ensure access of counsel is not denied. Access to counsel is integral to the fundamental constitutional right to due process and recent incoherent and contradictory policies from EOIR and ICE are endangering the health and constitutional rights of countless individuals, including members of their own staff.”
Immigration Justice Campaign Director at the American Immigration Council Karen Siciliano Lucas said, “Through our Immigration Justice Campaign, we have seen what the COVID-19 pandemic means for our volunteer attorneys and their clients in detention. They struggle to communicate with each other and have real concerns about how they can fairly present their immigration cases. The government must immediately close immigration courts and utilize remote opportunities until the coronavirus is under control to protect the health of immigrants, immigration judges, court staff, and surrounding communities alike. Our nation is only as healthy as its people. We must call on our leaders to do all they can to protect and care for everyone—regardless of immigration status.”
“EOIR and ICE have failed to take critical actions necessary to protect the health and safety of detained immigrants and their attorneys, creating disastrous public health conditions in detention centers and at immigration courts,” said Sirine Shebaya, Executive Director of the National Immigration Project. “Instead of releasing immigrants who do not need to be detained, ICE is choosing to keep them detained and deprive them of access to counsel, while EOIR proceeds with their hearings as though nothing has changed. The agencies must take the necessary measures to provide access to counsel and ensure the availability of robust alternatives for detained immigrants and attorneys who cannot proceed with in-person hearings at this time.”
A copy of the complaint is here: www.aila.org/covidcomplaint.

###

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

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

As the Trump regime intentionally puts the public at risk in Immigraton Court and DHS’s “New American Gulag,” the public officials supposedly in charge of protecting the pubic and insuring the integrity of justice continue to operate with “malicious incompetence” and “criminal negligence.” Kakistocracy is bad! But, it becomes life-threatening in the time of true (rather than the regime’s usual bogus) emergency!

PWS

03-30-20

FINDING OPPORTUNITY IN CRISIS: Trump Regime Uses Health Emergency To Up Child Abuse — Ignores Law, Orbits Kids To Harm’s Way Without Due Process As Feckless Dems Protest!

https://www.buzzfeednews.com/article/hamedaleaziz/coronavirus-unaccompanied-minors-deported

Hamed Aleaziz reports for BuzzFeed News:

In a major departure from previous practice mandated by federal law, the Trump administration has begun quickly deporting immigrant children apprehended alone at the southern border.

Administration officials say they are following public health orders designed to prevent the spread of the coronavirus in the US, but opponents say they are using the health orders to skirt federal laws that govern the processing of unaccompanied minors.

The New York Times first reported that the Trump administration would apply to unaccompanied children from Central America a March 20 order issued by the Centers for Disease Control and Prevention (CDC) that bars the entry of those who cross into the country without authorization.

Previously, unaccompanied children from Central America picked up by Border Patrol agents would be sent to the Office of Refugee Resettlement (ORR), where they would be housed in shelters across the country as they began officially applying for asylum and waited to be reunited with family members in the US.

On Monday, a US Customs and Border Protection official confirmed to BuzzFeed News that the agency was now applying the CDC order to children.

“All aliens CBP encounters may be subject to the CDC’s Order Suspending Introduction Of Persons From A Country Where A Communicable Disease Exists (March 20, 2020), including minors,” read a statement from CBP. “When minors are encountered without adult family members, CBP works closely with their home countries to transfer them to the custody of government officials and reunite them with their families quickly and safely, if possible.”

The statement noted that there is discretion for the agency to exclude certain unaccompanied children from the order if, for example, they show signs of illness.

Immigrant advocates told BuzzFeed News they were alarmed at the policy shift.

“Children arriving at the border, many of whom have endured unimaginable harm at home and on their journey, are the most vulnerable group encountered by border officials. Unaccompanied children are particularly vulnerable to trafficking,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council. “The answer to coronavirus cannot be to put children in harm’s way.”

Eleanor Acer, the refugee protection director at Human Rights First, said the move was proof that the Trump administration was “using” a public health crisis “to advance their long-standing goal of overturning US laws protecting vulnerable children and people seeking asylum.”

. . . .

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

Read the rest of the article at the link.

Like all fascists, the White Nationalist nativists of the regime are always looking for new ways to pick on the most needy and vulnerable. And, what presents a better target for cruelty and abuse than unaccompanied kids, particularly when a health emergency offers “cover?”

The Dems sputter but can’t do anything except write letters that go in the regime’s waste baskets.

PWS

O3-30-20

CLOSE ‘EM DOWN, ALREADY! — ROUND TABLE JOINS 70+ OTHER NGOs CALLING FOR IMMEDIATE CLOSURE OF ALL IMMIGRATION COURTS!

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

Knjightess — Knightess of the Round Table

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

Fanny Behar-Ostrow-Ostrow — Fanny Behar-Ostrow ESQ
Assistant Chief Counsel, DHS
President AFGE Local 511

From Dan Kowalski over @ LexisNexis Immigration Community:

More than 70 Organizations Call on DOJ to Immediately Close All Immigration Courts During the COVID-19 Pandemic

AILA Doc. No. 20032630 | Dated March 26, 2020 | File Size: 596 K

DOWNLOAD THE DOCUMENT

On March 26, 2020, more than 70 organizations joined AILA, the National Association of Immigration Judges (NAIJ), and the ICE Professionals Union, to call on the Department of Justice to immediately close all immigration courts during the COVID-19 pandemic.

Cite as AILA Doc. No. 20032630.

Related Resources

·         Resource Center: 2019 Novel Coronavirus (COVID-19)

·         Immigration Judges, Prosecutors, and Attorneys Call for the Nationwide Closure of All Immigration Courts

·         Press Call: Immigration Judges and Attorneys Joined by Public Health Experts Call for Additional Protective Measures Amid COVID-19 Outbreak

March 26, 2020

The Honorable William P. Barr Attorney General

U.S. Department of Justice

James McHenry

Director

Executive Office for Immigration Review

Submitted via email

RE: THE DOJ MUST IMMEDIATELY CLOSE ALL IMMIGRATION COURTS DURING THE COVID-19 PANDEMIC

Dear Attorney General Barr and Director McHenry,

Following previous calls by the National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (ICE Professionals Union), and the American Immigration Lawyers Association (AILA) for the temporary closure of all immigration courts, we, the undersigned international, national, state, and local immigration, civil rights, faith- based, government accountability, and labor organizations urge the U.S. Department of Justice (DOJ) to immediately close all 68 Immigration Courts operated by the Executive Office for Immigration Review (EOIR) in adherence with current public health protocols regarding the COVID-19 virus.

On the evening of March 17, EOIR postponed all non-detained hearings and recently postponed all of the Migrant Protection Protocol hearings (MPP) scheduled through April 22, 2020. However, more aggressive action is needed. While these policies are a step in the right direction, they fall far short of the required action called for by this pandemic emergency. The detained courts must also be closed to in-person hearings in order to minimize the spread of the virus, slow the rate of new infections, and to avoid overwhelming local resources.

Given the particular vulnerability of respondents in detained settings, the use of telework, which has been advocated by the Administration, can and should be quickly put in place. Immigration Judges stand ready and able to work to ensure priority matters, including detained bond matters, are addressed using technological tools. DOJ should permit all detained respondents to immediately receive telephonic bond redetermination hearings with teleworking judges and allow supporting documents to be faxed and emailed to a designated point of contact. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.

The urgency for immediate, decisive action in this matter cannot be overstated. Every link in the chain that brings individuals to the court – from the use of public transportation, to security lines, crowded elevators, cramped cubicle spaces of court staff, packed waiting room facilities in the courthouses, and inadequate sanitizing resources at the courts – place lives at risk.

AILA Doc. No. 20032630. (Posted 3/26/20)

Every state and the District of Columbia have declared a state of emergency giving government leaders the opportunity to implement bold and unprecedented measures to slow and eventually

eliminate the spread of the virus. Some officials are releasing prisoners, allowing them to shelter in place at home. Cities, county, and state governments have moved swiftly to implement stay at home orders to ensure the protection of community members from this highly communicable virus. These measures include the scaling back of mass transit conveyances to most urban centers where the immigration courts are located, creating significant logistical problems for anyone needing to access the courts. On March 21, the Department of Homeland Security (DHS) announced that it

will now require all legal visitors to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) in order to enter any

detention facility, despite the nationwide shortage of PPE.

Yet EOIR continues to operate courts in a business-as-usual manner, placing court personnel,

litigants, and all community members in harm’s way. To make matters worse, DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion

and leading to litigants showing up at hearings that are cancelled without notice.

DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts. DOJ must immediately implement the temporary closure all immigration courts. Failing to take this action now will exacerbate a once-in-a-century public health crisis and lead to a greater loss

of life.

If you have any questions, please do not hesitate to contact Laura Lynch, Senior Policy Counsel, AILA (llynch@aila.org), Judge Ashley Tabaddor, President, NAIJ (ashleytabaddor@gmail.com), or Fanny Behar-Ostrow, President, AFGE Local 511 (fbehar1@gmail.com).

Sincerely,

Fanny Behar-Ostrow ESQ
Assistant Chief Counsel, DHS
President AFGE Local 511

Advocates for Basic Legal Equality, Inc.

America’s Voice

American Federation of Government Employees (AFGE) Local 511 American Immigration Council

American Immigration Lawyers Association (AILA)

Americans for Immigrant Justice, Inc.

Amnesty International USA

Arizona Coalition to End Sexual and Domestic Violence

Asian Pacific American Labor Alliance, AFL-CIO

Asian Pacific Institute on Gender-Based Violence

ASISTA

Association of Deportation Defense Attorneys, Inc.

Ayuda

Capital Area Immigrants’ Rights (CAIR) Coalition

Catholic Legal Immigration Network, Inc.

Center for Gender & Refugee Studies

   AILA Doc. No. 20032630. (Posted 3/26/20)

Center for Victims of Torture

Central American Resource Center

Coalition for Humane Immigrant Rights (CHIRLA)

Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces End Domestic Abuse Wisconsin

Evangelical Lutheran Church in America

Federal Bar Association Immigration Law Section

*Disclaimer, this is the position of the Immigration Law Section and not the Federal Bar Association as a

whole.

Freedom Network USA

Government Accountability Project

Her Justice

HIAS

Human Rights First

Human Rights Initiative of North Texas

Illinois Coalition Against Domestic Violence

Immigrant Families Together

Immigration Equality

International Federation of Professional and Technical Engineers International Rescue Committee

InterReligious Task Force on Central America

Just Neighbors

Justice for Our Neighbors-Michigan

Las America’s Immigrant Advocacy Center

Latin America Working Group

Leadership Conference of Women Religious

League of United Latin American Citizens

Legal Aid Justice Center

Montana Coalition Against Domestic and Sexual Violence National Advocacy Center of the Sisters of the Good Shepherd National Association of Immigration Judges

National Council of Jewish Women

National Justice for Our Neighbors

National Latina Institute for Reproductive Justice

Nebraska Coalition to End Sexual and Domestic Violence Neighbors Immigration Clinic

NETWORK Lobby for Catholic Social Justice

New York Immigration Coalition

New York Justice for Our Neighbors

Northern Illinois Justice for Our Neighbors

Ohio Immigrant Alliance

Pax Christi USA

Restoration Immigration Legal Aid

Rian Immigrant Center

Round Table of Former Immigration Judges

Santa Fe Dreamers Project

Sisters of Mercy of the Americas Justice Team

AILA Doc. No. 20032630. (Posted 3/26/20)

South Texas Human Rights Center

Tennessee Justice for Our Neighbors

The Florence Immigrant & Refugee Rights Project

The Leadership Conference on Civil and Human Rights

Ujima Inc: The National Center on Violence Against Women in the Black Community Vermont Network Against Domestic and Sexual Violence

Virginia Coalition for Immigrant Rights

Virginia Coalition of Latino Organizations

Virginia Interfaith Center for Public Policy

Washington Office on Latin America

Washington State Coalition Against Domestic Violence

Wellspring United Church of Christ

Young Center for Immigrant Children’s Rights

AILA Doc. No. 20032630. (Posted 3/26/20)

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

Pretty disturbingly graphic example of how little EOIR & the DOJ care about the health, safety, and welfare of their own employees, let alone the public they have long ceased serving!

Also appreciate the courageous leadership of AFGE Local 511 President and DHS Assistant Chief Counsel Fanny Behar-Ostrow in joining the effort to end the regime’s reckless insanity. An “Honorary Member” of the NDPA to be sure! Folks like Fanny, Ashley, Laura, Jeff, and Dan are among America’s unsung heroes! Thanks for all you do!

Due Process Forever! Political “Courts” Endangering Public Welfare & Safety, Never!

PWS

03-26-20

CLOWN COURT REPORT 🤡🤡: AILA Seeks Information On Politically-Biased, Anti-Asylum Hiring @ BIA!

https://www.aila.org/advo-media/press-releases/2020/lawsuit-seeks-to-uncover-problematic-board

Lawsuit Seeks to Uncover Problematic Board of Immigration Appeals’ Hiring Procedures

AILA Doc. No. 20031937 | Dated March 19, 2020

CONTACTS:

Maria Frausto

202-507-7526

mfrausto@immcouncil.org
George Tzamaras

202-507-7649

gtzamaras@aila.org

For Immediate Release

Thursday, March 19, 2020

WASHINGTON, DC — The American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) filed a lawsuit Tuesday in federal court to compel the Department of Justice’s (DOJ) Office of Information Policy (OIP) to release records about the Executive Office for Immigration Review’s (EOIR) hiring procedures for appellate immigration judges and Board of Immigration Appeals (BIA) Members. The lawsuit seeks to understand current hiring procedures for the BIA—the highest administrative body for interpreting and applying immigration laws—after reports came to light of anti-immigrant bias in the hiring process.

The DOJ—which oversees immigration courts, houses the BIA, and employs immigration judges—has failed to disclose critical information about the hiring policy of appellate immigration judges and BIA Members, who make precedential decisions in the immigration adjudicatory system.

Advocates and policymakers have become concerned that DOJ’s hiring practices for appellate immigration judges and Board Members are improperly influenced by the Trump administration’s anti-immigrant policies. Biased hiring practices for these judges are a concern for the public because these judges can set legal precedent that has the potential to negatively impact thousands of immigrants seeking protection and/or a path to lawful status in the United States.

The lawsuit, filed in the U.S. District Court for the District of Columbia, challenges DOJ’s failure to disclose information in response to a Freedom of Information Act request submitted in October 2019.

“The fairness of the immigration court system depends on the impartiality of judges who are responsible for deciding thousands of cases each year. If appellate judges are not neutral decision-makers, the integrity of our immigration system is compromised,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council. “The lack of transparency in this hiring process only serves to undermine public confidence in this system.”

“It’s imperative that the public, policymakers, and stakeholders be provided with the opportunity to review the thus far opaque hiring process at the BIA. Allegations of politicized hiring give rise to the notion that BIA decisions serve the political purposes of the attorney general, rather than adhere to prior case law,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.

A copy of the complaint is here.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter@AILANational.

Cite as AILA Doc. No. 20031937.

Laura A. Lynch, Esq.

Senior Policy Counsel

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

The whole idea that a White Nationalist prosecutor and political toady like Billy Barr gets to hire the “judges” for a so-called “appellate tribunal” is as absurd and illogical as it is clearly unconstitutional. The perversion of our humanity and our legal institutions that has allowed this to operate in plain view as if it were “normal” should be a subject for reflection and study. That the Supremes and Congress both took a “dive” on this is beyond question. How they got away with it and continue to do so without any accountability is another story. Hopefully, at some point it will be told in full.

In particular, the anti-asylum bias of the regime has been aggravated by a large dose of anti-Latino racism and misogyny that both Congress and the Article III Courts have enabled and, in the case of the Supremes actively encouraged by rewarding the clearly disingenuous and misleading arguments of Solicitor General Noel Francisco on fabricated “emergencies” and bogus rationales for transparently invidious and irrational actions.

DUE PROCESS FOREVER! CLOWN COURTS 🤡🤡 AND THEIR COMPLICIT ENABLERS, NEVER!

PWS

03-20-20

WHERE JUSTICE IS BLIND, DEAF, & REALLY, REALLY DUMB — AMERICA’S COURTS FLUNK CORONAVIRUS TEST — ROBERTS’S FECKLESS LEADERSHIP — AILA CALLS FOR CLOSING ALL IMMIGRATION COURTS!

https://slate.com/news-and-politics/2020/03/courts-coronavirus-spread.html

Mark Joseph Stern reports for Slate:

For weeks, public health officials have warned that the coronavirus will spread rapidly in the United States but the infection rate could slow with social distancing and severe restrictions on mass gathering. The nation’s judiciary did not listen. Civil, criminal, and immigration courts continued to operate normally, with very few exceptions, until late last week. Even on Monday, after both the president and most governors had declared a state of emergency, a huge number of America’s courts continued to operate, forcing judges, attorneys, litigants, defendants, immigrants, and court staff into close quarters with potentially infected individuals. Conversations with more than two dozen lawyers and court staff (who requested anonymity to avoid professional blowback) across the country reveal a system that is disastrously unprepared for a pandemic—and facilitating the coronavirus’s spread.

Because the American judiciary is so decentralized, there is no single contingency plan that governs all courts in case of an emergency. Most state and federal courts are making up their own rules as they go. All 94 federal district courts and 13 federal appellate courts are scrambling independently to devise a strategy for COVID-19. In many states, individual trial and appeals courts are also struggling to meet their legal obligations without contributing to the spread of the virus. Immigration courts are under the control of the discombobulated and ineffectual Trump administration. So are agencies, like the Social Security Administration, that hold administrative hearings to adjudicate individuals’ access to public assistance. Meanwhile, thousands of jails, prisons, and immigrant detention facilities remain unwilling or unable to meaningfully address COVID-19, putting both detained people and staff at risk of infection. The legal system is actively jeopardizing millions of people’s health and lives.

The legal system is actively jeopardizing millions of people’s health and lives.

State judiciaries’ sluggish response to the crisis was on display Monday in courtrooms around the country. Slate spoke with defense attorneys in Florida, New Jersey, New York, North Carolina, Washington state, and the District of Columbia who witnessed large groups of defendants congregating in courthouses after police arrested them for low-level offenses. Many people had been jailed for at least one night for crimes like driving without a permit and possession of drug paraphernalia. In northern New Jersey, according to an attorney who was present, a prosecutor argued on Monday that defendants are, in fact, safer from the virus behind bars. But a defense attorney in the region told Slate that her clients in jail have no access to soap or toilet paper.

. . . .

As of Monday, federal district courts around the country were still in operation, though many had suspended jury trials. Chief Justice John Roberts, the head of the federal judiciary, has not issued public guidance to these courts, leaving them to fend for themselves. The chief judge of each federal district court must decide when, and if, to shutter completely. Similarly, the chief judge of each federal appeals court must determine how, and if, to hold oral arguments, and how to keep deciding cases in spite of the interruption. The Supreme Court has canceled March’s oral arguments.

Many immigration courts, which are controlled by the Executive Office for Immigration Review at the U.S. Department of Justice, were still operating on Monday too. EOIR cancelled all master calendar hearings on Sunday—these are short hearings, scheduled months or years in advance, that typically begin the deportation process. But courts are still holding other kinds of hearings, except in Seattle, whose immigration court has shut down entirely. According to a DOJ official at the Los Angeles Immigration Court, the agency has failed to provide employees with any meaningful guidance. This official told Slate that last week, a court administrator told staff that COVID-19 is “like the flu” and “not a big deal.” All last week, she said, “people were coming into courtrooms sick.” EOIR was just beginning to develop a telework plan on Monday and was withholding all information about future operations from staff.

An employee at the New York City Immigration Court spoke of similar disarray. This individual told Slate that her supervisor ignored repeated pleas to mitigate the risk of infection to staff. Immigrants with symptoms of COVID-19 have repeatedly appeared in court. When judges canceled hearings for the day to limit exposure to these individuals, this supervisor reportedly expressed anger that they had not simply moved to a different courtroom.

On Sunday, the union representing Immigration and Customs Enforcement prosecutors joined immigration judges and lawyers to call on the Department of Justice to shutter immigration courts entirely. This unprecedented alliance of frequent foes condemned the DOJ’s response as “insufficient” and “not premised on transparent scientific information.” (The agency has yet to answer this letter.)

There are currently more than 50,000 individuals in immigrant detention. There are already coronavirus outbreaks cropping up at these detention facilities. But the government has put forth no comprehensive plan to test and treat patients. The same is true for inmates in state and federal facilities. A defense attorney in King County, Washington—a COVID-19 hot spot—told Slate on Monday that “there is no plan to protect people in jail from coronavirus. People are still held on nonviolent charges, and people are still cycling through on all sorts of minor charges.” As long as police continue to arrest individuals for low-level offenses, these people will be put in jail and then sent to a courthouse. Even if prosecutors decline charges, these individuals may have already been exposed to the virus and could spread it.

. . . .

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

Read the complete article at the link.

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

Here’s the latest from Laura Lynch over at AILA:

The Honorable William P. Barr Attorney General

U.S. Department of Justice

James McHenry

Director

Executive Office for Immigration Review

Matthew T. Albence

Deputy Director and Senior Official

U.S. Immigration and Customs Enforcement

Submitted via email

March 16, 2020

Dear Attorney General Barr, Director McHenry, and Deputy Director Albence,

The American Immigration Lawyers Association (AILA) is writing to follow up on our March 12, 2020 letter requesting that Immigration and Customs Enforcement (ICE) immediately implement procedures for the prevention and management of COVID-19 and our March 15, 2020 statement calling for the emergency closure of the nation’s immigration courts, sent in conjunction with the National Association of Immigration Judges (NAIJ) and the American Federation of Government Employees (AFGE) Local 511 (the Immigration and Customs Enforcement (ICE) Professionals Union).

We appreciate the important measures already taken by the Department of Homeland Security (DHS) and the Department of Justice (DOJ), including the suspension of non-detained master calendar hearings. However, the evolving nature of this crisis demands more aggressive action. Since our initial letter to ICE, President Donald Trump proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. States and localities across the country have suspended school, put in place restrictions on the size of gatherings, closed restaurants and bars, and shut down tourist activities.

DOJ and DHS must acknowledge the severity of this pandemic, and take the following steps to protect DOJ employees, DHS employees, respondents, representatives, interpreters, experts, and other immigration court stakeholders, as well as the general public:

• Immediately Close Immigration Courts: DOJ should immediately close immigration courts for a minimum of two to four weeks so that public health officials have an opportunity to test and gain valuable information about who can transmit the COVID-19 virus and to reassess how to ensure a safe environment for immigration court hearings.

AILA Doc. No. 20031666. (Posted 3/16/20)

• Hold Telephonic Bond Hearings and Stipulate to Bond in Writing: DOJ should proceed with fully telephonic bond hearings so that detained individuals who are eligible can be released from custody as soon as possible and allow supporting documents to be faxed and emailed to the appropriate clerk. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.

• Cancel ICE Check-Ins: ICE should cancel and/or reschedule all OSUP and/or ISAP appointments that are scheduled for at least the next 60-90 days and extend the same for several months as conditions warrant.

• Immediately Release Anyone With Vulnerabilities from Custody: ICE should immediately release vulnerable populations from ICE custody, including people 60 and over, pregnant people, and people with chronic illnesses, compromised immune systems, or disabilities, and people whose housing placements restrict their access to medical care and limit the staff’s ability to observe them.

• Decrease the Number of People in Detention to Limit Exposure: ICE should liberally use its discretion to release individuals from custody and decrease the overall ICE population, including through the increased use of parole authority, stipulating to bond in written motions, and use of alternatives to detention (with no check-in requirements for thirty days or more).

• Take Proper Care to Prevent Transmission in Custody: ICE should immediately test detainees who exhibit any symptoms and/or present risk factors, as delayed confirmation of cases will necessarily be too late to prevent transmission. ICE should also provide proper hygienic supplies at all ICE detention and check-in facilities, allowing easy access to all detained persons, the population under ICE supervision, and ICE staff. ICE should halt transfers from facility-to-facility and to out-of-state locations in order to prevent the spread of the coronavirus throughout individual states and the U.S.

• Allow Stays of Removal and Other Emergency Motions to Be Submitted Via Mail: ICE should allow requests for stays of removal, and other emergency motions, to be submitted by mail instead of requiring an in-person filing with the applicant present.

• Issue a Blanket Extraordinary Circumstances Exception for One-Year Filing Deadlines: DOJ should issue a blanket extraordinary circumstances exception for asylum one-year filing deadlines that fall from March 1, 2020 (the beginning of the National Emergency) through the reopening of immigration courts.

2

AILA Doc. No. 20031666. (Posted 3/16/20)

• Provide Flexibility on All Deadlines: ICE and DOJ should liberally agree to and/or grant requests to extend filing deadlines based on imposition of remote work, loss of staff, necessity for child, elder, and family care based on school and institutional closures.

• Commit to Flexibly and Favorably Addressing COVID—19-Caused “Age Outs” on a Case-By-Case Basis. In the context of cancellation of removal for nonpermanent residents under INA § 240A(b), the Board of Immigration Appeals has acknowledged its ability to review the particular facts in a case in addressing a respondent’s argument that the age of qualifying relative should be “frozen” prior to the final administrative decision. Matter of Isidro, 25 I&N Dec. 829, 832 (BIA 2012) (rejecting respondent’s contention that age should be locked where there was no “undue or unfair delay” in the course of proceedings); see also Martinez-Perez v. Barr, No. 18-9573 (10th Cir. 2020) (BIA has jurisdiction and authority to interpret cancellation statute in a way that fixes the age of respondent’s daughter in light of undue or unfair delay).

• Stipulate to Relief When Appropriate, Especially in Detained Cases: ICE should stipulate to relief in cases where individual hearings are already scheduled, but must be re-calendared based on COVID-19 disruptions, and where the record in itself demonstrates that the respondent has meaningfully met her burden of proof based on a well-developed record of proceedings and evidentiary submissions that compel a grant of relief from removal.

• Parole Respondents in the Remain in Mexico Program: DHS should parole all respondents in the Remain in Mexico program (also known as MPP) into the U.S. on the date of their scheduled immigration court hearing date and provide them with a new hearing date in a non-detained court. At a minimum, EOIR must work with CBP to issue a new EOIR hearing notice and CBP must provide the respondent with both the new EOIR hearing notice and an MPP tear sheet. If the respondent does not have an MPP tear sheet containing a future U.S. immigration court date, the respondent would be out of status in Mexico and Mexico’s migration institute (INM) will likely refuse to renew the individuals’ temporary status in Mexico.

We respectfully request a response as soon as possible given the emergent circumstances. Please feel free to contact Kate Voigt (kvoigt@aila.org) with questions.

Sincerely,

THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION

CC: Barbara M. Gonzalez, Assistant Director, ICE Office of Partnership and Engagement; Richard A. Rocha, ICE Spokesperson; Lauren Alder Reid, Assistance Director, EOIR Office of Policy.

3

AILA Doc. No. 20031666. (Posted 3/16/20)

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

So, the spread of the coronavirus worldwide was months in the making. Why didn’t Roberts convene a meeting of the Judicial Conference, the Administrative Office, and the ABA to come up with an emergency plan?

Why didn’t EOIR, which has time for endless counterproductive “management” (actually “mismanagement”) nonsense (how about “judicial dashboards” for a mindless waste of time and money?), get together with the NAIJ, ICE, and AILA months ago to develop an emergency response plan for the Immigration Courts? No, the “powers that be” at EOIR were too busy trying to “decertify” the NAIJ with frivolous and unethical litigation.

The recent joint action by the NAIJ, AILA, the ICE union is a prime example of the way in which an Independent Article I Immigration Court, free of DOJ political mismanagement and improper influence, will foster cooperation, implement best practices, further efficiency, and make due process and fundamental fairness realities, not overnight, but certainly over time. https://immigrationcourtside.com/2020/03/15/as-eoir-dithers-immigration-professionals-take-cooperative-action-immigration-judges-prosecutors-and-attorneys-call-for-the-nationwide-closure-of-all-immigration-courts/Due process with humanity and efficiency! The “post-regime future” of an independent Immigration Court holds great promise and unlimited potential for good government and public service if we can only “get there!”

Once this emergency is over, America also needs a top to bottom re-examination of the leadership and administration of our diverse judicial systems. As a whole, they are obviously “not quote ready for prime time” (“NQRFPT”) when it comes to protecting the public or using technology for the common good.

Obviously, at many levels, Federal, State, and Local, we have some of the wrong people serving as judges. First and foremost, the law is about humanity and protecting and saving lives to the greatest extent possible. That’s a fundamental human message that Roberts and many other right wing judicial zealots, out of touch with the needs of the public and wedded to stilted semi-absurdist and contrived interpretations of the law, simply don’t get. America needs better judges, with some empathy, humanity, and common sense! Again, it won’t happen overnight, but we have to start somewhere to get anywhere in the future!

PWS

03-16-20

AS EOIR DITHERS, IMMIGRATION PROFESSIONALS TAKE COOPERATIVE ACTION: “Immigration Judges, Prosecutors and Attorneys Call for the Nationwide Closure of All Immigration Courts” — UPDATE: EOIR HALTS NON-DETAINED MASTERS TILL APRIL 10!

United Fron Position on Health and Safety During a Pandemic_

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES LOCAL 511

Immigration Judges, Prosecutors and Attorneys Call for the Nationwide Closure of All Immigration Courts

Position on Health and Safety of the Immigration Courts During the COVID-19 Pandemic

March 15, 2020

The National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (the Immigration and Customs Enforcement (ICE) Professionals Union), and the American Immigration Lawyers Association (AILA) (collectively, “the Organizations”) call for the emergency closure of the nation’s Immigration Courts in adherence with current public health protocols regarding the COVID-19 virus and recognizing the urgency of this public health crisis.

Our nation is currently in the throes of a historic global pandemic. The Department of Justice’s (DOJ) current response to the COVID-19 pandemic and its spread is insufficient and not premised on transparent scientific information. The DOJ is failing to meet its obligations to ensure a safe and healthy environment within our Immigration Courts. No doubt, closing the courts is a difficult decision that will impose significant hardship for those in the Migrant Protection Protocols and detained Respondents. But these are extraordinary times. Respondents who are in detained settings are in a particularly vulnerable situation that warrants specialized considerations. For example, steps should be taken to conduct bond redetermination hearings telephonically during this period. We support the use of telework which has been advocated by the Administration, and we are ready and able to work to ensure

priority matters, including detained bond matters where appropriate, are addressed using technological tools wherever possible.

Coordinated through the leadership of the NAIJ, the Organizations urge immediate action to close our courts in light of the broad scope of the health and safety challenges facing our nation and the Immigration Court system. NAIJ proactively called for the DOJ to take the steps necessary to protect the Immigration Judges, the Immigration Court staff, and the public we serve. As of Sunday, March 15th, the DOJ has failed to institute adequate measures to protect our court’s personnel and the public during this public health crisis.

On Friday, March 13th, the DOJ announced that it will close the Seattle Immigration Court and limit the size of some large master docket hearings at ten Immigration Courts in six cities within the United States for four weeks. The Organizations are firmly convinced that this action is woefully insufficient. We applaud the DOJ’s decision to close down the Seattle Court as it recognizes the need to place the health and safety of the community first. However, the DOJ has provided no scientific or reasoned basis to explain why one locale deserves this type of protection, while the Immigration Courts in the rest of the country are being provided with either partial health and safety solutions, or worse, no health and safety precautions at all. The President has now declared a “National Emergency.” Thirty-nine states have declared “State Emergencies.” Some cities have declared “City Emergencies.”

The Immigration Courts need immediate, sensible, rational, scientifically-based health and safety solutions that protect the Immigration Judges, their staff, the contract interpreters, the private bar, the respondents and their witnesses, the security staff, and so many of the other people who make each hearing possible. On Saturday, March 14, NAIJ consulted Dr. Ashish Jha, K.T. Li Professor of Global Health at the Harvard T.H. Chan School of Public Health, an internationally recognized expert and a leading authority on public health and COVID-19. We asked Dr. Jha to consider our Immigration Court structure and the nature of our hearings at more than 68 locations in cities throughout the United States in light of the current state of infection in our country due to the global pandemic. It is his expert opinion, from an epidemiological perspective, that the Immigration Court should not be holding any hearings at this point. He explained that it is impossible to determine which individuals who attend hearings are ill with COVID-19 virus, and stressed that people can infect others even though they are asymptomatic. He also explained that at this point, because of the lack of testing for COVID-19, we do not know which cities are “hot spots.” In other words, no one can say which cities have more cases of COVID-19 than other cities. Instead, confirmed COVID-19 cases reflects only the availability of testing and not the spread of disease.

In the face of inadequate national testing, Dr. Jha said it is irresponsible to do anything other than close our courts until sufficient testing has been conducted. He estimates that in two to four weeks sufficient testing will have been completed so that epidemiological experts will be able to provide specific, data-based directions for organizations like our courts. He provided his unequivocal opinion that to continue to hold any hearings at any Immigration Court at this time presents a high public health risk.

Given Dr. Jha’s uncontroverted expertise and studied opinion, we urge the Department of Justice to close the Immigration Courts to ensure the safety of all people involved in the process. Closing the Immigration Courts for the recommended limited period — two to four weeks — will give the public health officials an opportunity to test and gain valuable information about who can transmit the COVID-19 virus and to reassess how best to ensure a safe environment for Immigration Court hearings. Failing to take this action now will exacerbate a once in a century public health crisis.

Now is the time to close the nation’s 68 Immigration Courts for two to four weeks, to protect the health and safety of the Immigration Judges, the Immigration Court staff, and the public that we serve.

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

Horrible situation!

But not surprising to me that the “Old Team” of dedicated professionals from all sides that used to operate at the Arlington Immigration Court prior to this regime has come together again to put America first, promote the public good, and “do the right thing” in the absence of national leadership from the regime.

Imagine what immigration professionals working together could accomplish if an independent Immigration Court were created to operate cooperatively to serve the common interest — that of making the system work and promoting the common good! Thanks to everyone involved for this extraordinary effort demonstrating fairness, scholarship, timeliness, teamwork, and respect for each other and for humanity!

Also, shows to the “toxic stupidity” of the Trump/Barr attack on Federal employee unions — the only folks in the immigration bureaucracy actually committed to making the system work for everyone.

Due Process Forever! Degradation Of The Public Interest Never!

PWS

03-15-20

UPDATE: 11:15 PM EDT.:

Courtside has been informed by an “inherently reliable source” that EOIR has halted all non-detained Master Calendar Hearings until April 10!

PWS

03-15-20

WILL CLUELESS CLOWN COURTS ENDANGER PUBLIC HEALTH & SAFETY? 🤡🤡 — The Inevitable Spread of Coronavirus Is “Old News” & Poorly Designed & Mismanaged Immigration Courts Appear To Be a “High Risk” Potential Breeding Ground — Predictably, Dysfunctional EOIR Has No Contingency Plans In Place! — 100-Case “Master Calendars” in Mini-Courtrooms Bringing Old & Young, Infirm & Able, From Far & Near Together Under Threat Of In Absentia Deportation — What Could Possibly Go Wrong?

NDPA stalwart Laura Lynch, Senior Policy Counsel @ AILA reports:

Flagging this new CNN article along with two letters from the NAIJ.

Letter from NAIJ to Acting Chief Immigration Judge Chris Santoro on the lack of guidance issued to EOIR staff, March 9, 2020

Letter from NAIJ to IJs to provide guidance on the immigration courts and COVID-19, March 9, 2020

CNN: Immigration judges want to know how to handle coronavirus, March 9, 2020

Immigration judges want to know how to handle coronavirus

By Priscilla Alvarez, CNN

Updated 5:04 PM ET, Mon March 9, 2020

(CNN)The union representing immigration judges urged the Trump administration in a letter Monday to “immediately” implement steps to protect judges and their staff and provide guidance on how to proceed amid the coronavirus outbreak, which also has the potential to exacerbate the overwhelming backlog of pending cases.

The letter calls for the Executive Office for Immigration Review, an agency within the Justice Department that oversees the nation’s immigration courts, to inform employees about the plan “as it relates to a potential pandemic,” noting that some immigration court functions “may not lend themselves to telework.”

“As you know, our work requires us to be in close contact with the public on a daily basis, often in very large numbers and groups,” wrote Judge Ashley Tabaddor, president of the National Association of Immigration Judges.

She continued: “Beyond our own employees, the respondents who come before us may also be at high risk for developing serious illness. Because we order their appearance and they face the prospect of removal if they don’t appear, sick respondents and respondents vulnerable to serious illness will keep coming to court unless we take action.”

As concerns over the coronavirus ramp up, some government agencies, businesses and organizations have taken steps to try and prevent the spread of the disease by preparing for employees to telework, limiting travel and canceling gatherings.

In Monday’s letter, the union asked the Trump administration to consider measures such as waiving the appearance of some respondents, allowing for telephonic appearances and limiting in-court paper filings. The union is also recommending in an email to the workforce that judges keep bottles of hand sanitizer in the courtroom, use disinfecting wipes to clean surfaces and limit court attendance.

Any change in daily operations is critical in immigration court, which faces a pile-up of pending cases. Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.

Last year’s US government shutdown, which resulted in some cases being postponed, exacerbated the long-standing issue and added to the backlog. There are more than 1 million pending cases before the immigration courts, according to Syracuse University’s Transactional Records Access Clearinghouse or TRAC, which tracks immigration court data — resulting in cases being scheduled out years in advance.

TRAC estimated last year that between 80,000 and 94,000 immigration court hearings may have been canceled as a result of last year’s government shutdown. The only cases that moved forward during that time were those of immigrants in detention.

The concerns held among immigration lawyers Monday are reminiscent of the government shutdown.

Immigration attorneys are worried about the effect on the backlog of cases if judges, attorneys, and other stakeholders are out because of the illness.

“If this thing gets out of control, it’s always a problem when cases are canceled, given the backlog,” Lawrence K. Le Roy, an immigration lawyer based in Newark, said in reference to coronavirus.

John Leschak, an immigration attorney, had a hearing scheduled Monday at the Newark immigration court for a client seeking asylum in the United States. The judge was not in court and the hearing was postponed. It’s unclear whether the reason behind the judge’s absence was related to coronavirus.

“It’s unfortunate because it’s a case that’s been pending for a long time,” Leschak said. “We’re between a rock and a hard place.”

The coronavirus is also already impacting the operations of some federal courts across the US.

For example, a district court in Washington state and the 9th Circuit Court of Appeals, which hears cases from nine western states including Washington, altered some of the procedures as the virus continues to spread. Washington has seen at least 80 cases.

Unlike other courts, however, immigration courts fall under the executive branch, not the judicial branch.

Ariane de Vogue and Kevin Bohn contributed to this story.

Laura A. Lynch, Esq.

Senior Policy Counsel

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

Thanks Laura, my friend, for keeping us up to date. And, as always, thanks to Priscilla for her great reporting on the never-ending mess and continuing outages at EOIR.

When it comes to public service and professional court administration from “Headquarters,” “today’s EOIR is the pits.” And, that’s not a knock on Chief Judge Chris Santoro who is generally known as a “straight shooter” and a “problem solver.” I think that I’ve acknowledged before that he was always kind and supportive to me and helped me through some very difficult times in my career at Arlington. I’ll always be appreciative for that.

“Reading between the lines,” he was ordered by one of his “superior bozos” in EOIR’s ludicrous “chain of command” to issue the inane order and then to rescind it when everything “hit the fan.” Typical EOIR “march ‘em up the hill, then march ‘em down again nonsense,” that actually has an adverse effect on both internal morale and the public.

On the other hand, perhaps it’s time for those who know how screwed up and “maliciously mismanaged” this system is to “come out and join the resistance,” as others in our Round Table have done, some at considerable personal sacrifice (not me, of course — I was fortunate enough to be able and ready to retire from EOIR even before the current regime took over.) I have no doubt that someone with Chief Judge Santoro’s ample and diverse skill set could find employment in the private sector.

But, this “circus-like” incident raises deeper issues.

In what kind of “court system” are “judges” not allowed to post public notices issued by the CDC without saying “Captain May I?” The DOJ falsely claims that its “judges” are “policy officials.” Whoever heard of a “policy official” who couldn’t hang up a Government public health poster? This whole thing is an unbelievable farce! Why does it take a directive from “Headquarters” to rectify what should be a no brainer in any functioning court system?

And, what kind of “court system” (outside the military) reports to “headquarters.” You think that the U.S. District Courts in Washington called up John Roberts to see if it was OK to cancel trials because of a public health threat? I doubt it.

Why wasn’t NAIJ President Judge Ashley Tabaddor involved in the Coronavirus planning. She speaks for those “on the line” in contact with the public. Certainly, few issues could have a greater effect on “working conditions” than steps to prevent the spread of infectious disease. Why is the NAIJ forced to waste time complaining and going to such lengths when competent management would have involved them in advance planning months ago?

Imagine how much better this system would operate if it were run by real judges who hired professional court administrators to work for the public good, instead of maliciously incompetent clowns carrying out Stephen Miller’s fascist agenda?

As you know, I blame the Article IIIs and Congress for letting this deadly mockery of our Constitution and American Justice continue to operate — essentially to dehumanize, abuse, and sometimes kill. I trust the younger members of the NDPA, folks like Laura and her colleagues, and the next generations to see that the life-tenured judges and legislators who looked the other way and knowingly acted as enablers as human dignity, our Constitution, and the rule of law were trampled upon by a White Nationalist regime are held fully accountable in the “court of history.”

The “J.R. Five’s” toxically improper action in Wolf v. Cook County, skirting the rules to enable the regime’s illegal, racially motivated rewriting of the “public charge” rules to go into effect has been exposed for the outrageous politically biased action it is. It allows the regime to intentionally spread panic in ethnic communities, particularly targeting Hispanics, citizens, immigrants, and the undocumented, and to intimidate those who should be seeking health care advice from doing so. Nice public health policy. As if Coronavirus and other diseases know the difference between “documented” and “undocumented” humans. It’s likely that Roberts and his tone deaf cronies will have even more “blood on their hands” before this is over.

As I said on Courtside recently, in the future, we also need more courageous, scholarly, humane, and ethical Article III Judges — folks who will read the Constitution and stand up for individual rights and for human dignity — folks who understand as MLK once said that “injustice anywhere is a threat to justice everywhere.” The current group of Article IIIs is a national disgrace (as a whole, although there are many notable exceptions, mostly among the U.S. District Court Judges who all too often get reversed by the CAs and the Supremes as their “reward” for “standing tall” for the rest of us and standing up for the fair application of the rule of law).

In the meantime, NAIJ President Judge Ashley Tabaddor is a national hero for standing up for the due process rights of all and having the courage to “speak truth to power” in these perilous times. Obviously, the unethical “decertification action” started by DOJ and EOIR is part of the effort to punish and silence her. Hang in there Ashley! We in the NDPA and the Round Table support and appreciate you and your tireless efforts!

Due Process Forever! Clown Courts 🤡& Complicit Article III Courts Never!

PWS

03-11-20

54 NGOs DECLARE EOIR A DUE PROCESS DISASTER AREA, URGE CONGRESS TO CREATE INDEPENDENT ARTICLE I COURT — Round Table of Former Immigration Judges Among Groups Seeking Change — Join AILA’S “Twitterstorm” Today (Wednesday)

Hi Local Asylum Liaisons-

Today AILA, the American Immigration Council, and 52 additional organizations sent a letter to members of Congress, urging them to establish an independent immigration court! This letter was sent in advance of tomorrow’s twitterstorm that aims to bring attention to the dysfunction in the immigration court system and call for reform.

Asks:

Please amplify this letter on social media.

Twitter: You can retweet AILANational’s tweet or use some of the sample tweets below.

·          Click to tweet: Case-completion quotas force immigration judges to rush through cases, often at the expense of due process. This assembly-line justice is unacceptable. Read the letter @AILANational & others sent to Congress calling for independent courts. http://ow.ly/mV3730qiMW5

·          Click to tweet: The Trump administration’s certification decisions have undermined due process and weakened protections for asylum seekers. Read more in this letter @AILANational and over 50 orgs sent to Congress. #JudicialIndependence http://ow.ly/mV3730qiMW5

·          Click to tweet: Due process and #JudicialIndependence should never be sacrificed in the name of political expediency. Read the letter @AILANational sent with over 50 other orgs calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5

Sample LinkedIn/Facebook Post: Please share AILA’s Facebook post or use sample post below.

Due process and judicial independence should never be sacrificed in the name of political expediency. Read the letter AILA National sent with 50 other organizations calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5

Please join us tomorrow, Wednesday (2/19) from 3pm – 4pm ET to participate in a Twitterstorm hosted by AILA, NIJC, and Human Rights First.

You can share tweets from our social media toolkit or craft your own using the hashtag #JudicialIndependence. Looking forward to seeing you on Twitter!

Thank you! -Laura

Also ICYMI –last week a group of Senators accused the Department of Justice of politicizing the immigration courts in a letter to Attorney General Barr. Read more here.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

Here’s the link to our letter:

NGOLTREOIR20021838

DUE PROCESS FOREVER!

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

PWS

02-19-20

4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

4^th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

http://www.ca4.uscourts.gov/opinions/181886.P.pdf

Atemnkeng v. Barr, 4^th Cir. Jan. 24, 2020, published

PANEL: GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

OPINION BY: Chief Judge Gregory

KEY QUOTE:

Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in

anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.

On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.

In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is

meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2

further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.

*******************************“

When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

By Paul Wickham Schmidt

“Courtside” Exclusive

Jan. 1, 2020

Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!

After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?

Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.

Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.

Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.

When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.

Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.

Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.

What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.

Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.

The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.

And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.

It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?

Due Process Forever; Complicit Courts Never!

PWS

01-31-20

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

Due Process Forever!

PWS

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UPDATE: 11:15 PM EDT.:

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