BILLY APPOINTS MALPHRUS AS ADDITIONAL DEPUTY CHIEF APPELLATE IMMIGRATION JUDGE (“VICE CHAIR”) @ BIA! — Hard Line, Restrictionist, Anti-Asylum, Anti-Due-Process Jurisprudence Rewarded!🏴‍☠️☠️⚰️

Billy Barr Consigliere — Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

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

From the EOIR website:

Garry Malphrus

Deputy Chief Appellate Immigration Judge

Attorney General William P. Barr appointed Garry Malphrus as a deputy chief appellate immigration judge in September 2020. Judge Malphrus earned a Bachelor of Arts in 1989 from the University of South Carolina and a Juris Doctor in 1993 from the University of South Carolina. From August 2008 to September 2020, he served on the Board of Immigration Appeals, Executive Office for Immigration Review, including as acting board chairman from October 2019 to May 2020. From 2005 to 2008, he served as an immigration judge at the Arlington Immigration Court. From 2001 to 2005, he served as associate director of the White House Domestic Policy Council. From 1997 to 2001, he worked for the U.S. Senate Committee on the Judiciary, which included serving as chief counsel and staff director on the Subcommittee on Criminal Justice Oversight and the Subcommittee on the Constitution. From 1995 to 1997, Garry served as a law clerk for the Honorable Dennis W. Shedd, U.S. District Judge for the District of South Carolina. From 1994 to 1995, he was a law clerk for the Honorable William W. Wilkins of the U.S. Court of Appeals for the Fourth Circuit. From 1993 to 1994, he was a law clerk for the Honorable Larry R. Patterson, Circuit Judge for South Carolina. Judge Malphrus is a member of the South Carolina Bar.

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

No surprise here, folks, as Courtside had predicted this back in May:

https://immigrationcourtside.com/2020/05/22/%f0%9f%91%82%f0%9f%8f%bb%f0%9f%91%80%f0%9f%a4%abeoir-rumor-mill-doj-honcho-x-oiler-david-h-wetmore-reportedly-will-be-tapped-as-new-bia-chair/

This appears to be the “penultimate step” in the ongoing process of “benching” the long-time “holdover” Vice Chair Chuck Adkins-Blanch. First, he was “passed over” when Judge Malphrus became the BIA’s Acting Chair following the hasty departure of former Chair David Neal. Now, Malphrus basically has been “layered in” to be the “real Deputy,” who will faithfully continue to carry out Billy’s nativist political agenda, presumably until Adkins-Blanch reaches retirement and finally pulls the plug.

Needless to say, Judge Adkins-Blanch’s name has been conspicuously absent from the BIA’s most recent barrage of anti-immigrant, anti-asylum “precedents.” That is, of course, the “precedents” that Billy lets the BIA write as opposed to the ones that he and his fellow political hacks at “Main DOJ” issue as “AG precedents.”

More and more, the AG, whom nobody except, perhaps, a few intentionally tone-deaf Circuit Court of Appeals Judges, would mistake for an “expert” in immigration law, has taken over the BIA’s precedent setting function. That leaves the BIA basically to do the “mop-up work” of maximizing the impact of Billy’s anti-immigrant policies and insuring that just and fair results below favoring immigrants are reversed upon demand of “EOIR’s masters” at DHS Enforcement.

Talk about the need for an Article I Court with a new cast of characters selected on a merit basis for their demonstrated immigration expertise, and established commitment to due process, fundamental fairness, equal justice, human rights, and practical applied scholarship! That so many Article III judges continue to “go along to get along” with this vile legal charade says some pretty sad things about the overall state of justice and the judiciary in America!

An Article I Court requires judicial leadership that replaces “built to fail ‘Vatican Style’ (or “Legacy INS Style”) hierarchical bureaucracy” with professional court administration and a much “leaner and flatter” judicial structure. A judicial structure where most resources are devoted to actually fairly and efficiently deciding cases, establishing “best practices,” and leading by example. That would eliminate the “Mickey Mouse” demeaning “control freak supervision (“suppression”)” of supposedly senior level “judges” who, if properly selected, would need effective support, but little to no “supervision” in the normal bureaucratic sense of the term.

In the meantime, expect the backlog to grow unabated and the Article IIIs to continue to reverse and return an essentially random selection of the BIA’s reliably “one-sided” jurisprudence for “redos!” That will further increase the backlog without effectively addressing the fundamental problem of an unconstitutional system with a clearly established anti-immigrant political bias!

Just more signs of an American justice system now in the throes of institutional failure!

Due Process Forever!

PWS

09-29-20

“My Trials: Inside America’s Deportation Factories” — Round Table Star 🌟 Hon. Paul Grussendorf Releases Revised Edition Of His Acclaimed Book 🏆 — Help Him Self-Publish Here!

Paul Grussendorf is organizing this fundraiser.

Creative Arts, Music & Film

I am a lawyer specializing in asylum and refugee law. I have taught refugee law at George Washington University, University of San Francisco and Howard University. I have worked with the U.S. government and the UN Refugee Agency in refugee resettlement all over the world, most recently in Rwanda until COVID shut down our interviews.

In 2011 I self-published my legal memoir, My Trials: Inside America’s Deportation Factories, focusing upon the deportation system and my time as an immigration judge. It is time to update the book, given all the changes and destructive policies that have occured in recent years to our asylum system. The book received great reviews: “My Trials is both a scathing indictment of a broken immigration system that sends vulnerable immigrants back to perilous situations from which they fled, and a heartfelt call for a return to the values upon which our nation was founded.” American Immigration Lawyers Association. It was endorsed by renowned criminal defense attorney Gerry Spence.

The budget will include $2000 for editing and formatting, and $3000 for a limited publicity campaign. I am currently working with an editor to make the book available on Amazon by first week of October, so funds are essential now. It will be available on all other platforms mid-October.

This book has been a labor of love and education, and I have not profited from it. I will be tremendously grateful for assistance to make this updated book available at this critical junction in our nation’s history.

Click here it contribute to Paul’s “Go Fund Me” Campaign:

https://www.gofundme.com/f/help-paul-selfpublish-his-immigration-book?utm_source=customer&utm_medium=email&utm_campaign=p_cf+share-flow-1

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Judge, educator, public servant, humanitarian, author, role model, tireless advocate for due process, fundamental fairness, and equal justice for all: Thanks, Paul, for all you have done and continue to do. It’s a total honor to serve with you on the Round Table!🛡⚔️👍🏼

PWS

09-27-20

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

Transactional Records Access Clearinghouse

The Life and Death of Administrative Closure

FOR IMMEDIATE RELEASE

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

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

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

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

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

Read the full report at:

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

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

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

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

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

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

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

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

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

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

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

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

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

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

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

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

Due Process Forever!

PWS

09-10-20

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Here’s an Addendum from Margaret Stock:

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

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

Sent from my iPhone

🏴‍☠️🤡BIA’S LATEST ANTI-ASYLUM PRECEDENT CONTINUES ASSAULT ON DUE PROCESS — MATTER OF R-C-R-

Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020)

https://www.justice.gov/eoir/page/file/1311336/download

BIA HEADNOTE:

(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

PANEL: MULLANE, KELLY, and GORMAN, Appellate Immigration Judges

OPINION BY: GORMAN, Appellate Immigration Judge

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30 days to file an application for asylum for an unrepresented, detained, non-English speaking applicant appearing by televideo, huh? “Full and fair hearing?” Only in the “Never Never Land” of EOIR in the 5th Circuit,

I can guarantee that this bogus “30-day-filing standard” will be used to railroad lots of hapless and clueless asylum applicants out without due process.

The good news: Outside the “Judicial Wasteland” of the Fifth Circuit, at least some reviewing Circuits likely will “blow the whistle” on this disingenuous nonsense and abdication of Constitutional duties and send the cases back to the meat packing plant (a/k/a EOIR) for redos, thus adding to the “Aimless Docket Reshuffling” and astronomical backlog.

There is actually a reason why fundamental fairness and competent court management are required by Due Process! In the long run, following the Constitution and the statute, as well as having “judges” with actual expertise, independence, courage, and some “practical common sense,” as opposed to EOIR’s endless “haste makes waste” enforcement gimmicks and one-sided, bias-driven judging, makes for a more efficient justice system for everyone. But, that will require a “full housecleaning” at EOIR.

Due Process Forever!

PWS

09-01-20

⚖️🧑🏽‍⚖️SOURCE OF RACIAL TENSION & ENDEMIC INEQUALITY 🤮: U.S. COURTS: Nan Aron Of Alliance For Justice Speaks Out On Why We Need Progressive Judges!

https://www.washingtonpost.com/politics/trump-biden-supreme-court/2020/08/28/0f0a8158-e937-11ea-bc79-834454439a44_story.html

By Seung Min Kim in the WashPost:

. . . .

But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.

The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.

“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.

She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”

. . . .

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Read the full article at the link,

Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.

Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:

- Ridiculously convoluted and entirely unnecessary 2-year hiring process (under former Director Anthony C. Moscato, the Clinton Administration could sometimes do it in a fraction of that time with better, or at least no worse, results);
- Eschewing progressive judicial candidates, including well-qualified underrepresented groups, with scholarly credentials and practical expertise in immigration, asylum, human rights, and due process in favor of an endless stream of largely “insider only, don’t rock the boat” picks;
- Leaving numerous positions unfilled at the end of the Administration for White Nationalist xenophobe Jeff Sessions to fill;
- Ignoring obvious, achievable management reforms like e-filing!

The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history!

In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!

Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!

It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!

It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!

Due Process Forever! Repeating past mistakes, never!

PWS

08-30-20

🏴‍☠️☠️🤮⚰️👎🏻BILLY THE BIGOT GOES BANANAS 🍌 WITH RACIST, ANTI-IMMIGRANT AGENDA @ EOIR AS ARTICLE IIIs TAKE A DIVE ON EQUAL JUSTICE FOR ALL!

Laura Lynch reports from AILA:

DOJ Proposes Regulation to Turn Immigration Appeals into Tool of the Administration’s Anti-Immigrant Agenda

FOR IMMEDIATE RELEASE

August 26, 2020
Contact: George Tzamaras, gtzamaras@aila.org
Tessa Wiseman, twiseman@aila.org

Washington, DC – Today, the Department of Justice (DOJ) published a sweeping proposed rule in the Federal Register that would overhaul Board of Immigration Appeals (BIA) processes and remove due process safeguards with an aim of fast-tracking deportations. The public has 30 days to comment on the proposed rule.

AILA’s Senior Policy Counsel, Laura Lynch, stated, “The proposal gives the Director of the Executive Office for Immigration Review (EOIR) extraordinary adjudicatory power over appeals, authorizing him to reverse, singlehandedly, BIA decisions at the request of immigration judges. Putting this much power in the hands of an administrator who is not even a judge will give the Trump administration unprecedented ability to manipulate the courts in furtherance of its deportation agenda. The need for independent immigration courts has never been more urgent, or clear. This exemplifies why AILA is calling on Congress to pass legislation creating an immigration court system separate and independent from DOJ.”

AILA’s First Vice President, Jeremy McKinney, added, “The realities of this proposed rule are grim—more power entrusted to a hand-selected bureaucrat, increased pressure for speedy decisions at the cost of due process, and a dismantling of an appeals process vital to a fair day in court. Deeply troubling is the rule’s codification of the prohibition former Attorney General Jeff Sessions tried to impose on judges’ ability to administratively close cases, a fundamental authority judges need to efficiently manage their overloaded dockets. At least two circuit courts have rejected Sessions’ analysis and overturned the decision. The proposed rule is part of a larger effort by the DOJ to exert improper political influence over immigration court decisions and to turn the immigration courts into an enforcement mechanism. It’s a power grab, pure and simple.”

###

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.

Laura A. Lynch, Esq.

Senior Policy Counsel

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

Thanks, Laura, for all that you and AILA do to fight for equal justice for all and to combat the evil influence of Billy the Bigot and his toadies over at EOIR!

Litigate, litigate, litigate! Force the Article IIIs to confront on a mass basis the human carnage, overt xenophobia, mockery of justice, and racism that they have fostered with their timid and indolent approach to the massive assault on our justice system and human dignity from Billy the Bigot and the White Nationalist regime! Make a record for future generations to see who stepped up, who chickened out, and what kind of individuals hid behind their black robes while humanity suffered and the lives of some of the most vulnerable were unlawfully and unethically destroyed.

There is no excuse for the continued, unconstitutional EOIR abomination! Past time for the Article IIIs to call halt to this perverted charade and transfer all immigration hearings to U.S. Magistrate Judges until Congress and the Executive create a new, independent, constitutionally compliant Immigration Court!

Due Process Forever!

PWS

08-26-20

THE GIBSON REPORT – 08-24-20 – Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group

COVID-19

Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.

New

Opening dates for some non-detained courts: Hearings in non-detained cases at courts without an announced date are postponed through, and including, September 11, 2020. [Note: Despite the standing order about practices upon reopening for Federal Plaza, an opening date has not been announced for NYC non-detained at this time.]

Closures

EOIR Operational Status & Standing Orders

EOIR Case Status

ICE Updates (Including ERO and Detention)

USCIS Updates

Consular Updates

NY Courts Updates

Guidance:

IJ Email Filings

BIA Email Filings

EOIR Standing Orders

EOIR Electronic Signature Guidance

EOIR Update Regarding EOIR Practices Related to the COVID-19 Outbreak

USCIS Visitor Policy

USCIS Announces Flexibility for Requests for Evidence, Notices of Intent to Deny

Electronic database of COVID-19 related materials

NY Notary Guidance

TOP NEWS

Who gets asylum? Even before Trump, system was riddled with bias and disparities

SD Trib: A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.

House Passes Emergency Funding to Stop USCIS Furloughs

DocumentedNY: The House on Saturday passed a bill to provide emergency funding to U.S. Citizenship and Immigration Services, which is set to furlough almost 70% of its staff on Aug. 31. The Senate won’t return until September to vote on the bill, though any senator can bring it up and ask for it to be passed through unanimous consent.

Immigration Court Completions Remain at Historic Lows Through July 2020

TRAC: Monthly case completions before the March shutdown were running over 40,000. During January 2020, for example, they were 42,045 and in February completions were 41,793. During the period from April to July they fell precipitously to around 6,000. In July 2020, only 5,960 cases were completed.

GAO Denies DHS’s Request to Rescind Decision on Legality of Service of Chad Wolf and Kenneth Cuccinelli

GAO denied DHS’s request to rescind decision on the legality of the service of Acting DHS Secretary and Senior Official Performing the Duties of DHS Deputy Secretary because DHS did not show GAO’s decision contained material errors of fact or law or provided information that warranted reversal. AILA Doc. No. 20082101

GAO Says ICE Should Enhance Its Use of Facility Oversight Data and Management of Detainee Complaints

GAO examined what ICE does with oversight inspection data and information from detainee complaints and found that ICE doesn’t comprehensively analyze inspection or complaint information to identify trends in deficiencies, and that ICE doesn’t have reasonable assurance that complaints are addressed.

DACA Advocates Seek Contempt Ruling On Trump Admin.

Law360: A nonprofit coalition is asking a Maryland federal court to sanction the Trump administration, saying the government is intentionally misleading the public and disobeying multiple court orders after the U.S. Supreme instructed it to reinstate the Delayed Action for Childhood Arrivals program.

Steve Bannon Charged With Misusing Donations For Trump’s Border Wall

NPR: Steve Bannon, President Trump’s former political adviser, has pleaded not guilty through his counsel to wire-fraud and money-laundering charges related to an online scheme that federal prosecutors said was responsible for defrauding hundreds of thousands of people.

Trump Cabinet officials voted in 2018 White House meeting to separate migrant children, say officials

NBC: In early May 2018, after weeks of phone calls and private meetings, 11 of the president’s most senior advisers were called to the White House Situation Room, where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.

New Jersey Lets Immigrants Obtain Professional Licenses

DocumentedNY: Some states have lifted immigration employment restrictions in certain industries, but New Jersey will be the first do so across the board.

LITIGATION/CASELAW/RULES/MEMOS

USCIS Says Employees Can Use Form I-797 for Form I-9 Verification During EAD Production Delays

USCIS announced that due to EAD production delays, employees may use Form I-797, Notice of Action, with a notice date on or after 12/1/19 through 8/20/20 informing approval of an Application for Employment Authorization (Form I-765) as a list C #7 document for Form I-9 compliance until 12/1/20. AILA Doc. No. 20081936

Notice of Proposed Settlement and Hearing in Lawsuit Challenging DHS’s One-Year Filing Deadline for Asylum Applications

The District Court for the Western District of Washington has scheduled a hearing for 11/4/20 for consideration of a proposed settlement in Mendez Rojas v. Wolf, a suit involving individuals who have filed, or will be filing, an asylum application more than one year after arriving in the U.S. AILA Doc. No. 20082430

USCIS Issues Policy Alert on Procedures for Terminating Asylum Status in Relation to Consideration of an Application for Adjustment of Status

USCIS issued policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application. The policy is effective 8/21/20; comments are due 9/22/20. AILA Doc. No. 20082132

Advance Copy of EOIR Notice of Proposed Rulemaking on Appellate Procedures and Administrative Closure

Advance copy of EOIR notice of proposed rulemaking proposing multiple changes to the processing of immigration appeals, as well as amending the regulations regarding administrative closure. The proposed rule will be published in the Federal Register on 8/26/20 with a 30-day comment period. AILA Doc. No. 20082161

USCIS Issues Guidance on Implementing DHS Acting Secretary’s July 28, 2020, Memorandum on DACA

USCIS provided guidance on how it will implement DHS Acting Secretary’s 7/28/20 DACA memo. Among other things, USCIS will reject all initial DACA requests from individuals who have never received DACA and will limit grants of deferred action and employment authorization to no more than one year. AILA Doc. No. 20082431

AILA and Sidley Austin, LLP Challenge Trump Administration’s Unlawful USCIS Fee Rule on Behalf of Immigrants’ Rights Organizations

The coalition will be seeking an emergency nationwide injunction of the rule to prevent it from going into effect on October 2, 2020. AILA Doc. No. 20082133

DHS Releases Fact Sheet on Measures on the Border to Limit the Further Spread of Coronavirus

On August 14, 2020, DHS updated its fact sheet on measures to limit non-essential travel across the U.S.-Canada and U.S.-Mexico borders and to limit the spread of the coronavirus. The measures have been extended until September 21, 2020. AILA Doc. No. 20032336

RESOURCES

Practice Pointer: Navigating the USCIS Contact Center

Practice Alert: ICE Provides List of Duty Attorney Email Addresses for ICE OPLA’s Field Locations

Second Opinions Are Perfectly Acceptable: Ethics Check

Six Fundamentals to More Productive Meetings, Whether Virtual or In-Person

Bite-Sized Ethics: Choosing Between Loyalty and Lying

Use of Non-Engagement and Disengagement Letters

Death Flights – Week Of 17 August

CGRS Factsheet in Spanish on Proposed Asylum Regulation

CGRS Factsheet in Spanish on Proposed Public Health/National Security Regulation

EVENTS

Note: Check with organizers regarding cancellations/changes

8/25/20 Emerging Public Charge Issues Related to COVID-19

8/26/20 Immigration Legal Services in Rural America

8/27/20 Crafting a Winning Particular Social Group for an Asylum Case

9/1/20 Virtual Briefing: The U.S.-Canada Safe Third Country Agreement And The Future Of Asylum In The United States

9/8/20-9/29/20 Webinar Series: All About Public Charge Inadmissibility (Fall)

9/9/20 DACA: Beyond the U.S. Supreme Court Decision

9/10/20 Preparing and Filing the New USCIS Public Charge Form I-944

9/10/20 Country Conditions in El Salvador, Guatemala, and Honduras for Asylum Claims Based on Harm to Children

9/10/20-9/17/20 2-Part Introduction to Asylum Law and Procedure

9/11/20-10/2/20 Webinar Series: Dealing With Denials

9/14/20 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2020

9/15/20 How Criminal Defense Counsel Can Challenge ICE Detainers

9/16/20 Preparing for the Expansion of Expedited Removal

9/16/20 Advanced FOIA with DHS

9/22/20 Defenses to Denaturalization

9/23/20-10/7/20 3-Part Webinar Series: Integrating Technology to Improve Your Immigration Legal Services

9/24/20 Introduction to Crim/Imm

9/29/20 Beginner U Visa Hot Topics

10/1/20 Representing Children in Immigration Matters 2020: Effective Advocacy and Best Practices

10/6/20 Public Charge Updates

10/6/20-10/27/20 Webinar Series: Understanding and Preparing Waivers

10/21/20-10/23/20 Case Management Skills & Database Functions

10/22/20 Non-LPR Cancellation: Overview of Eligibility & Proving Continuous Presence

10/27/20 Seeking Special Immigrant Juvenile Status in Removal Proceedings

10/28/20 Advanced U Visa Hot Topics

10/29/20 Presenting the Case

10/29/20 Marijuana: Bridging the Divide Between State and Federal Law

11/17/20 Employment-Based Immigration Opportunities for Immigrant Youth

11/18/20 Applying for Asylum and Related Relief for Clients with Convictions

11/12/20 Defying Non-Reviewability: How to Proceed After a Consular Denial

11/17/20 Make the Government Pay! Attorney fees in Immigration

11/24/20 VAWA Self-Petitioning Fundamentals

12/2/20 An Overview of Naturalization

12/3/20 Representing Permanent Residents in LPR Cancellation Cases

12/3/20-12/4/20 53rd Annual Immigration and Naturalization Institute

12/8/20 Litigating Your Way Out of Delay

12/9/20 Public Charge in Consular Processing

12/15/20 Crimes Involving Moral Turpitude

12/16/20 LPRs and Public Charge

2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas

2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021

ImmProf

Monday, August 24, 2020

John Oliver: The Wall, Part 2

Where immigrants will have the most voting power in 2020

Who Gets Asylum? New Analysis of EOIR Data from Kate Morrissey and Lauryn Schroeder of the San Diego Union-Tribune

Trump Administration Proposed Rule Aims To Speed Up Immigration Appeals

Terminating Asylum Status in Deciding Applications for Adjustment of Status

Immigration Article of the Day: Reflections on the DACA Cases in the Supreme Court — The ‘Illusion of Freedom by M. Isabel Medina

Sunday, August 23, 2020

From The Bookshelves: Separated: Inside an American Tragedy by Jacob Soboroff

Saturday, August 22, 2020

Philosophical Frameworks for Evaluating Immigration Law and Policy: a Video by Prof. Maureen Sweeney

From the Bookshelves: New Immigration Book: “We Are Not Dreamers” co-edited by Leisy J. Abrego and Genevieve Negrón-Gonzales

Friday, August 21, 2020

Immigration Court Completions Remain at Historic Lows Through July 2020

Immigration Article of the Day: The Impact of Pretrial Detention on Immigration Case Proceedings: An Empirical Analysis by Jose Martinez

Thursday, August 20, 2020

Trump cabinet officials voted in 2018 White House meeting to separate migrant children, say officials

Steve Bannon, three others charged with fraud in border wall fundraising campaign

NPR: Shadow Immigration System: Migrant Children Detained In Hotels By Private Contractors

Death on the Border: How U.S. Policy Turned the Sonoran Desert Into a Graveyard for Migrants

Trump’s #StudentBan Part of a Continuing Attack on International Students

Look Who’s Hiring: Ohio State

Immigration Prominent at Democratic National Convention

Wednesday, August 19, 2020

From The Bookshelves: Pursuing Citizenship in the Enforcement Era by Ming Hsu Chen

Class action challenges DoD denials of military security clearance for naturalized soldiers

Tribal nations seeks to block border wall

President Trump seeks boost in Arizona by focusing on immigration

Tuesday, August 18, 2020

Trump’s immigration restrictions would have kept me and other tech founders from coming to America

DACA Advocates Seek Contempt of Court

Senator Charles Schumer will speak on immigration to Democratic Convention — with Statue of Liberty as backdrop

Former Senior Trump DHS official endorses Joe Biden

Monday, August 17, 2020

2020 Catholic Immigrant Integration Initiative Conference

LAT Compares Trump, Biden on Immigration

Migrant Children and Families Held at Hotels, Investigative Reporting at the NYT Reveals

GAO: Trump’s top DHS officials were unlawfully appointed

Why do Americans think more immigration means more crime? (audio)

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

Thanks, Elizabeth!

PWS

08-25-20

SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!

Laura Lynch @ AILA reports:

FYI – On Friday, August 21st, Democratic members of the Senate Judiciary Committee sent a letter to the GAO requesting an investigation into the politicization of the immigration courts and EOIR’s mismanagement of the immigration courts during the COVID-19 pandemic.

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

From: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Sent: Friday, August 21, 2020 3:24 PM
To: Davidson, Richard (Whitehouse) <Richard_Davidson@whitehouse.senate.gov>
Subject: Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

FOR IMMEDIATE RELEASE

August 21, 2020
Contact: Rich Davidson

(202) 228-6291 (press office)

Senators Call for GAO Investigation of Trump Politicization of Immigration Courts as COVID-19 Crisis Rages

Trump attacks on immigration system raise serious concerns about safety during pandemic

More than 1,000 people in immigration detention have tested positive for COVID-19, and five have died

Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Dick Durbin (D-IL), and Mazie Hirono (D-HI) led a Senate request to the top congressional watchdog to investigate the practices of the Executive Office of Immigration Review (EOIR) under President Trump, including its management of immigration courts during the current COVID-19 pandemic. In a letter to the Government Accountability Office (GAO), the senators raise concerns first voiced to the Justice Department in February about mismanagement of the EOIR under Attorney General William Barr, as well as the Trump administration’s regulatory and procedural changes at the Justice Department that have curtailed the independence of immigration courts. The administration’s mismanagement of and meddling with the immigration courts – done in the name of “efficiency” – are particularly troubling during the COVID-19 pandemic, when an overburdened system can lead to unsafe practices that place individuals at grave risk and jeopardize due process, the senators write to the GAO.

“While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures, legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens,” the senators write. “In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous.”

Joining Whitehouse, Durbin, and Hirono in the request to the GAO are Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Amy Klobuchar (D-MN), Chris Coons (D-DE), Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Kamala Harris (D-CA).

The senators continue in their letter to GAO, “Immigration courts are now reopening around the country, including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video, participants often must appear in person or not at all. Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19. Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits. As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.”

The Trump administration’s management of the immigration system has come under close scrutiny during the COVID-19 crisis. Reports suggest immigrants face a range of unsafe conditions and practices as a result of Trump administration management decisions, including the detention of children using unaccountable private contractors. More than 1,000 people in immigration detention have tested positive for COVID-19, and five people have died.

Full text of the senators’ request is below. A PDF copy is available here.

August 21, 2020

The Honorable Gene Dodaro

Comptroller General of the United States

United States Government Accountability Office

441 G Street, NW

Washington, DC 20548

Dear Mr. Dodaro:

We are writing to request that the Government Accountability Office (GAO) analyze and audit the Executive Office of Immigration Review’s (EOIR) practices with respect to the hiring, training, and evaluation of immigration judges and staffing of immigration courts, as well as their management of these courts during the current COVID-19 pandemic. GAO’s insight will help Congress determine if additional legislation is necessary to address these issues, as well as inform appropriations decisions.

In February, we wrote to Attorney General William Barr to express our concern that the Trump administration is undermining the independence of immigration courts. As outlined in that letter, attached, we are concerned about the mismanagement of EOIR and troubled by regulatory and procedural changes within the Department of Justice (DOJ) that have curtailed the independence of immigration courts. Although more than six months have passed, we have not received a response from DOJ or EOIR. Instead, in that time, EOIR has continued to use its administrative powers to put its thumb on the scale of justice. Most recently, EOIR attempted to buy out all nine career Board of Immigration Appeals judges who had been hired in prior administrations.[1] When the judges refused, they were reassigned to new roles.[2]

While the Trump administration has justified its incursions into the independence of immigration courts as efficiency measures,[3] legal service providers have explained that EOIR’s response to the COVID-19 pandemic demonstrates how the agency can use seemingly neutral measures to tip the scales of justice against noncitizens. In order to defend themselves in immigration court, noncitizens must file motions and other papers in person at physical court locations; obtain counsel; meet with their attorneys; present testimony from family members, employers, and/or expert witnesses; and provide medical records, tax records, and other supporting documents. Yet COVID-19 makes these actions potentially dangerous. While EOIR initially postponed all hearings for non-detained individuals, proceedings for detained noncitizens continued to move forward unabated.[4] Immigration courts are now reopening around the country,[5] including in areas that are seeing increases in the number of COVID-19 cases. Because EOIR does not have consistent policies for when attorneys, let alone translators or witnesses, may appear telephonically or by video,[6] participants often must appear in person or not at all.[7] Immigration courts have continued to issue in absentia orders of removal for noncitizens who do not appear, even when the likely cause is COVID-19.[8] Nor has EOIR uniformly extended deadlines or continued cases, despite the difficulty noncitizens face in finding and consulting with counsel, obtaining and filing necessary documents and evidence, or securing the appearance of witnesses. These difficulties are particularly acute for detained clients, who have limited access to phone calls and attorney visits.[9] As a result, noncitizens cannot obtain counsel or litigate their cases, and attorneys cannot effectively represent their clients.[10]

EOIR’s facially-neutral policies during the COVID-19 pandemic have raised systemic due process concerns.[11] Immigration judges, staff, and litigators have also expressed concerns about the health risks to them and the litigants who appear in immigration courts.[12] Given GAO’s prior work on immigration courts,[13] it is uniquely suited to conduct an audit and analysis of EOIR. We ask GAO to look into the following questions:

What criteria does EOIR use to hire immigration judges and Board of Immigration Appeals judges? What criteria does EOIR use to determine the number of deputy chief and other management positions for judges, and what criteria does EOIR use to hire for these positions? To what extent does EOIR assess its immigration judge and Board of Immigration Appeals judge hiring efforts? What, if any, challenges has EOIR encountered in recruiting and retaining immigration judges and Board of Immigration Appeals judges? How, if at all, has it addressed them?

How does EOIR determine targets for immigration court and Board of Immigration Appeals case completion time frames and caseloads?

To what extent has EOIR assessed its immigration court and Board of Immigration Appeals staffing needs? What have any such assessments shown? How do current immigration court staffing levels compare to staffing needs EOIR has identified?

How does EOIR assess immigration and Board of Immigration Appeals judge performance?

To what extent has EOIR assessed immigration judge and Board of Immigration Appeals judge training needs? What have any such assessments shown?

How has EOIR’s use of video teleconferencing changed since GAO last reported on it in 2017? What, if any, data is EOIR collecting on hearings using video teleconferencing and the effects of that technology on hearing outcomes?

How do EOIR’s practices compare to other administrative courts?

How, if at all, is EOIR addressing the backlog of cases that were postponed in response to the COVID-19 pandemic?

How, if at all, has EOIR’s response to COVID-19 affected noncitizens’ ability to locate and meet with counsel, obtain and present evidence in their cases, and appear in court? To what extent have the challenges of COVID-19 impacted the number of in absentia orders issued by immigration courts?

Please keep our offices apprised of your review. Thank you for your attention to this matter.

###

[1] Tanvi Misra, DOJ ‘reassigned’ career members of Board of Immigration Appeals, CQ Roll Call, June 9, 2020, available at https://www.rollcall.com/2020/06/09/doj-reassigned-career-members-of-board-of-immigration-appeals/.

[2] Id.

[3] Jeff Sessions, Attorney General, U.S. Dep’t of Justice, Remarks to the Executive Office for Immigration Review Legal Training Program (Jun. 11, 2018), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-executive-office-immigration-review-legal.

[4] Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic (last updated Aug. 19, 2020); American Immigration Lawyers Association, “AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic,” https://www.aila.org/eoir-operational-status (last visited Aug. 19, 2020).

[5] American Immigration Lawyers Association, supra note 4.

[6] Id.

[7] Emergency Mot. for a Temporary Restraining Order, Nat’l Imm. Project of the Nat’l Lawyers Guild v. Exec. Office of Imm. Review, No. 1:20-cv-00852-CJN, at 12-18 (D.D.C. Apr. 8, 2020), available at https://www.aila.org/advo-media/press-releases/2020/temporary-restraining-order-requested-to-stop.

[8] Id. at 15-16.

[9] Monique O. Madan, Despite national shortage, immigration lawyers required to bring their own medical gear, Miami Herald, Mar. 22, 2020, https://miamiherald.com/news/local/immigration/artcile241414486.html.

[10] Id. 12-15, 25-26.

[11] Betsy Woodruff Swan, Union: DOJ deportation appeals workers fear overcrowding, Politico, Apr. 23, 2020, https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075 (“That is the feeling the [EOIR] employees have, that [EOIR’s COVID response is] definitely connected to this administration and their desperation to be able to boast about how great they’re doing on their deportation numbers.”).

[12] Nat’l Assoc. of Immigration Judges, Am. Assoc. of Immigration Lawyers, & Am. Fed. Of Gov’t Employees Local 511, Position on the Health and Safety of Immigration Courts During the COVID-19 Pandemic, Mar. 15, 2020, available at https://naij-usa.org/images/uploads/newsroom/2020.03.15.00.pdf.

[13] See, e.g., Gov’t Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (June 2017).

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

Basically, confirms what AILA, NAIJ, our Round Table, NGOs, and much of the media have been saying for a long time now! Obviously, the Dems lack the power in the Senate to take effective action to eliminate EOIR and replace it with an independent Article I Court, at present. Hopefully, that will be remedied in November.

In the meantime, what’s the excuse of the Article IIIs for continuing to allow this mockery of our Constitution and parody of justice to continue to daily inflict abuse on their fellow humans?

Due Process Forever!

PWS

08-25-20

🏴‍☠️☠️🤮⚰️🆘AMERICA’S SHAME — NATIONAL DISGRACE – SYSTEMIC INSTITUTIONAL FAILURE: From Supremes Who Abandoned Their Key Precedent In Cardoza-Fonseca, To A 5th Cir. Court Of Appeals That Shirked Its Duty To Protect Refugees, To A “Don’t Rock The Boat” BIA That Failed To Enforce Uniformity, To Unqualified & Biased Immigration “Judges” Who Created Illegal, “Asylum-Free Zones,” The U.S. Asylum System Was In Deep Trouble Even Before Trump – Under Trump, It Has Become A “Killing Floor” Programmed To Intentionally Deny & Deport Deserving Refugees To Death, Torture, Or Grotesque Mistreatment, As Indolent, Cloistered Article IIIs, Unwilling To Dig In & Stop The Slaughter Look On!

https://www.sandiegouniontribune.com/news/immigration/story/2020-08-23/who-gets-asylum-even-before-trump-system-was-riddled-with-bias-and-disparities

An asylum seeker’s chances at protection hinge on numerous factors that often seem arbitrary — from location to nationality to individual judge assigned — according to a Union-Tribune analysis of immigration court records
By KATE MORRISSEY,
LAURYN SCHROEDER
AUG. 23, 2020
5 AM
For the world’s most vulnerable, protection in the United States has all but disappeared.
Wait times for asylum seekers at the U.S.-Mexico border that already seemed indefinite now seem impossible. Families struggle to find food and shelter to outlast a pandemic order with no end date.
Those who cross north are sent back to Mexico in a matter of hours — or even put onto planes back to the countries from which they fled — without any opportunity to explain why they came.
In its response to COVID-19, the Trump administration achieved what it long sought, a shutdown of the U.S. asylum system. And with new regulations introduced this summer, the administration has moved to squeeze out any real chance at refuge in case the pandemic order is lifted.
But even before the current president began his campaign against asylum in the United States, people often struggled to win protection — no matter how strong their cases appeared to be.
In its 40-year history, the system has chronically fallen short of its promise of safety.
RETURNED: PART II
The second in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The Trump administration has used statistics about grant rates to justify closing off access to asylum, saying that those who lose their cases are illegitimate asylum seekers.
The facts show a different story: Thousands of people turned away based not on the merits of their cases, but on the capriciousness of a system so riven with inequity that many outcomes seem little more than arbitrary.
A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.
. . . .

***************************
Read the rest of this eye-opening (for those not familiar with this broken, biased, and beyond dysfunctional system) article at the above link.

There can be no excuse for the “horror chamber” that this already broken, battered, and unfair system has devolved into. It will take genuine changes in expertise, attitude, courage, and intellectual integrity across all three branches of Government to get this system functioning in a fair, legal, and constitutional manner consistent with due process and our international obligations.
It also will require much better, more educated, more courageous, more practical, and more intellectually honest judges from the Immigration Courts (which must become independent from the Executive) all the way up to and including the Supremes.

Better judges for a better America! Life tenure means it won’t happen overnight. But, the process needs to begin now for our nation to survive and prosper!

We can’t achieve equal justice for all with so many judges who don’t believe in it, don’t have expertise in and a commitment to human rights, and don’t have the guts to stand up for the legal, constitutional, and human rights of all individuals coming before our justice system. That specifically includes the “most vulnerable among us” – asylum seekers and other of our fellow humans whose humanity and right to live seem to fall below the “radar screen” of the current Supremes’ majority!

Due Process Forever! “Dred Scottification” and complicity, never!

PWS
08-24-20

🏴‍☠️☠️👎🏻🤡🎪🤮KAKISTOCRACY WATCH: How Do You “Dumb Down” An Already Dysfunctional Organization? — Just Ask EOIR! — Latest Ludicrous Regs Proposals Show Why America Would Be Better Off Without Clown Courts Putting On Expanded “Freak Show” Under The Big Top!

Read the “advance copy of proposed regulations” scheduled to be published in the Federal Register on August 26, 2020 here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-18676.pdf

WARNING: Any resemblance to a court of law or part of the justice system contained in the document at the link is purely coincidental.

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

The short-term solution is actually simple: The Article IIIs need to strike this system down as a patently ridiculous denial of 5th Amendment Due Process. All immigration proceedings should be conducted de novo before U.S. Magistrate Judges, with review by District Judges and Circuit Courts, until Congress acts to establish an Immigration Court System that complies with our Constitution!

Due Process Forever!

PWS

08-23-20

🆘 NDPA ALERT: Immigration Advocates & African Americans Have Been At The Forefront Of The Resistance To The Trump Regime — Immigration Advocates Can’t Be “Stiffed” Like They Were By Obama — Let Joe Know That Appointment Of Child Abuser & Family Imprisonment Advocate Sally Yates, Or Any “Retread” Like Her, As AG Will Be A Breach Of Faith! — No More “Go Along To Get Along” Appointments — Only Someone With Demonstrated Human Rights & Immigrants’ Rights Commitment Can Be AG or DHS Sec. Under Next Dem. Administration!

https://www.washingtonpost.com/opinions/2020/08/21/biden-picked-his-vp-now-we-pick-his-dream-cabinet/

Opinions

Here’s who Biden should pick for a dream Cabinet

(Tom Toles/The Washington Post)

Opinion by The Ranking Committee

August 21, 2020 at 9:04 a.m. EDT

Add to listAdd to list

With presumptive Democratic nominee Joe Biden’s veep picked, convention concluded and campaign cruising ahead of his opponent’s, he might be tempted to start measuring the White House drapes. So to curb that temptation, the Ranking Committee members are doing it for him for Round 69 — starting with whom he should pick for his Cabinet.

. . . .

Attorney General Sally Yates

A courageous civil servant who has demonstrated her commitment to upholding the law even under personally and politically difficult conditions.

— Catherine Rampell

. . . .

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

Hell No! Sorry, Catherine, Yates would be a “Nightmare on Elm Street” ☠️!

Sally Yates presided over families in immigration prison, civil detention abuses, the disintegration of the Immigration Courts through “Aimless Docket Reshuffling,” dilatory hiring practices for Immigration Judges, unrepresented toddlers in Immigration Court, misuse of the justice system as a “deterrent” for immigration, and the steady diminution of both Due Process and judicial independence at the BIA and the Immigration Courts.

She was totally gone deaf on the immigration, human rights, and human decency issues (except for her last act when she was heading out the door), and helped set the table for the gross abuses of human rights inflicted on asylum seekers and immigrants, particularly targeting those of color, by the Trump regime.

She would be a horrible Attorney General and an insult to Hispanics, people of color, immigrants, and ethnic communities that have stood up against Trump’s abuses while many Dems folded their tents and hid.

Either Former HUD Secretary and Presidential candidate Julian Castro or his brother Rep. Joaquin Castro would be far superior choices. They both understand that justice for migrants and asylum seekers, and humane sensible immigration policies are prerequisites for finally attaining equal justice under law, fundamental fairness, and eliminating the institutionalized racism in which Yates played a role.

Immigration advocates must make their opposition to this and other unacceptable choices clear to the Biden campaign in advance of the election and should pledge to testify en masse against any such nomination.

No more Dem AGs who fail to make human rights and equal justice for all, including asylum seekers, immigrants, African Americans, Hispanic Americans, Asian Americans, and all people of color “job number one!” The next Dem AG must also be 100% committed to an independent, Article I Immigration Court to replace the current dysfunctional and insanely unfair mess at EOIR!

Catherine Rampell is generally “spot on.” But, hey, anyone can have a bad day!

There is lots of new talent out there that demands a chance to lead! No excuse for “retreads!”

Due Process Forever! Sally Yates & Other Dem Retreads With Disgraceful Records Of Failure On Human Rights & Immigration, Never!

PWS

08-22-20

😇🌞🗽⚖️👍🏼“A LIGHT IN THE FOREST” — Michelle Mendez @ CLINIC Shows How Good Pro Bono Lawyering Saves Lives Even When The System Is Rigged Against Justice For Immigrants!

Subject: CLINIC BIA Pro Bono Project Recent Victories

Friends,

BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly with the purpose of making it more difficult for noncitizens to win their cases. However, CLINIC’s BIA Pro Bono Project continues to fight back and perform miracles—defeating Goliath—thanks to BIA Pro Bono Project Manager Rachel Naggar, BIA Pro Bono Project Legal Specialist Brenda Hernandez, and our many dedicated attorney volunteers. Rachel and Brenda shared with me the project’s awe-inspiring stories of success from this summer and the volunteers who made these victories possible. In turn, I share these success stories with you to offer inspiration to keep fighting for your clients while the Trump administration escalates its attacks on immigrant communities.

The BIA remanded the case of a Haitian asylum seeker on numerous grounds, including that the IJ did not apply the proper framework for assessing firm resettlement, the IJ mixed up the respondent’s political party when assessing his claim for withholding of removal, and the IJ did not meaningfully consider the respondent’s risk of future persecution. Thank you to Michael Ward of Alston&Bird!

The BIA overturned the IJ’s adverse credibility finding against an asylum seeker from Burkina Faso. The BIA also found that the IJ erred in concluding there was no nexus between the harm the respondent suffered and his political opinion, including that the prosecution he endured was actually pretext for persecution. Thank you to Gregory Proctor, Marjorie Sheldon, and Christian Roccotagliata of Kramer, Levin, Naftalis & Frankel!

The BIA granted asylum to a Cuban refugee. Contrary to the IJ, the BIA found that the harm suffered by the respondent did cumulatively rise to the level of past persecution and he did have a well-founded fear of persecution. Thank you to Austin Manes and Aaron Frankel of Kramer, Levin, Naftalis & Frankel!

The BIA remanded the case of a Cuban asylum seeker because the IJ failed to consider the evidence of past economic persecution along with the physical harm suffered. The BIA also reminded the IJ that where the persecution is committed by the government, it is presumed that internal relocation is not reasonable, and the burden shifts to DHS to demonstrate that it would be reasonable in this case. Thank you to Dean Galaro of Perkins Coie!

The BIA reopened the case of a Cuban asylum seeker because he had new evidence of harm and threats against his family that occurred after his final hearing with the immigration judge. Thank you to Astrid Ackerman and Aaron Webman of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit granted the petition for review of a Ghanaian asylum seeker, overturning the IJ’s negative credibility finding and concluding that the Board had failed to adequately consider the country conditions evidence when it denied CAT relief. You can read the full decision here. Thank you to Kari Hong of Boston College Law School!

The Third Circuit, in a published decision, granted a Honduran asylum seeker’s petition for review, finding that the IJ and BIA erred in analyzing whether the respondent had suffered past persecution. The Court also found that the IJ failed to conduct the proper analysis regarding the need for evidence in an application for CAT protection. You can read the full decision here. Thank you to Aaron Rabinowitz and Gary Levin of Baker & Hostetler!

The Sixth Circuit, in a published decision, granted a Russian asylum seeker’s petition for review, finding that the IJ and BIA erred in concluding that the respondent was not persecuted on account of his political opinions and that his indictment for peacefully protesting under Russian law was a pretext for persecution. You can read the full decision here. Thank you to Brenna Duncan and Andrew Caridas of Perkins Coie!

DHS withdrew its appeal of a grant of asylum from Mexico to a Cuban national. DHS conceded to the IJ that the respondent was eligible for asylum from Mexico, but not Cuba because of the Third Country Transit Bar. DHS changed its mind and filed an appeal, which was withdrawn after pro bono counsel filed his brief. Thank you to James Montana of The Law Office of James Montana!

The BIA dismissed an appeal by the Department of Homeland Security and upheld a Cuban woman’s grant of asylum. The Board found that the IJ was correct in deeming the respondent eligible for asylum and not subject to the Third Country Transit Bar. Thank you to Aaron Rabinowitz and Jeffrey Lyons of Baker & Hostetler!

ICE released a Venezuelan asylum seeker from detention to reunite with her spouse, after tremendous advocacy efforts by her pro bono attorney. Thank you to David Gottlieb!

The Ninth Circuit remanded the case of a Honduran victim of domestic violence, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had demonstrated that the Honduran government acquiesced in her persecution, whether the respondent is part of a viable particular social group, whether it would have been futile for her to report the harm to local authorities, and whether internal relocation would be reasonable. Thank you to Alicia Chen!

A victim of human rights violations by the notorious Eritrean military was granted withholding of removal, after the BIA overturned the IJ’s adverse credibility finding and found that the IJ failed to consider that the country conditions evidence corroborated the respondent’s claim. Thank you to Jonaki Singh and Susan Jacquemot of Kramer, Levin, Naftalis & Frankel!

The Ninth Circuit remanded the case of an asylum seeker from Mexico, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had been persecuted and sexually assaulted on account of her sexual orientation, and whether the government of Mexico could adequately protect her from future harm. Thank you to Tim Patton of the Appellate Immigration Project!

The Fourth Circuit granted the petition for review holding that a conviction under VA 18.2-280(A) is not a removable firearms offense, a result that would not have been possible had Mr. Gordon not continued to fight his case for so many years even despite being deported. You can read the decision here. Thank you to the CAIR Coalition and Ted Howard at Wiley Rein! Thank you also to the National Immigration Project of the National Lawyers Guild for the amicus support!

Jose came to the United States in 1985 to live with his father as a permanent resident. He built a life in the United States, becoming a father himself. After a run in with the law, he was placed in removal proceedings and was detained for 19 months. In a 2-1 decision, the Third Circuit found that under the unique circumstances of this case, Jose’s father was deprived of the equal protection of the laws. Jose is a United States citizen, the court declared, and has been since 1985. In the wake of the Supreme Court’s 2016 decision in Sessions v. Morales-Santana, Jose’s case was the first to benefit from this Supreme Court decision. You can read the full decision here. The government petitioned for rehearing, but the full Third Circuit declined to intervene. Ultimately, the government declined to ask the Supreme Court to review the case. For the better part of the last decade, Jose’s life has been filled with uncertainty and stress, but not anymore, which is very important as Jose is expecting his first grandchild. A huge thank you to Nick Curcio who has represented Jose for 7 years!

In its 19+ years of operation, the Project has reviewed more than 7,200 cases, pairing attorneys and law school clinics with vulnerable asylum seekers and long-time lawful permanent residents. If you are interested in representing a case through CLINIC’s BIA Pro Bono Project, please complete our volunteer form. If you prefer to show your support for the BIA Pro Bono Project via a monetary donation, please designate “BIA Pro Bono Project” in the “In honor of” field of our donations page.

Gratefully and in solidarity,

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

Thanks Michelle, my friend, colleague, and courageous leader of the NDPA. What a timely, wonderful, practical, “real life” illustration of Jason “The Asylumist” Dzubow’s “praise and call to action for pro bono” that I republished earlier this week! https://immigrationcourtside.com/2020/08/11/lifesaving-101-for-the-ndpa-begins-with-pro-bono-never-has-the-need-been-greater-pro-bonos-finest-hour-in-americas-time-of-darkness-cruelty-inhumanity/

Here’s what our colleague Judge Jeffrey Chase has to say about Michelle and CLINIC:

No surprise, Michelle. CLINIC is responsible for so much good case law. And the non-CLINIC successful attorneys probably used CLINIC training or practice advisories. Congrats to you and all of your outstanding attorneys and support staff, and thanks for all you do!

Even in times of our greatest national darkness and misery, there are plenty of lives that can be saved! Contrary to the “Dred Scottification” — dehumanization of persons in our country — unconscionably pushed by the regime and enabled by many public officials and courts that “should know better,” every person’s life is important!

And, despite the conscious misinterpretation and misapplication of the Fifth Amendment by far too many of those charged with upholding it, every person in the U.S., regardless of race or status, is entitled to due process, fundamental fairness, and to be treated with human dignity.

Think of how much progress we could make if we didn’t have to keep re-litigating all the same issues over and over again, often with differing results!

What if the “precedents” concentrated on those cases that could be granted, rather than almost exclusively focusing on “roadmaps to denial?”

What if we promoted and supported great pro bono representation, rather than inhibiting and discouraging it?

What if meritorious cases were moved to the “head of the line” instead of continuously being “shuffled off to Buffalo” by “Aimless Docket Reshuffling” (“ADR”) thereby languishing in the mindlessly expanding backlog?

What if Federal Judges at all levels were the “best and the brightest” — selected from among those with demonstrated expertise in immigration, asylum and human rights and impeccable reputations for due process, fundamental fairness, and humanity, rather than being selected for “go along to get along” reputations or allegiance to perverse political ideologies that undermine equal justice for all?

What if our Immigration Court system were administered independently and professionally, rather than as a biased and weaponized tool of DHS enforcement and White Nationalist politicos?

What if our Justice System worked cooperatively with folks like Michelle, Jason, Judge Ashley Tabaddor, and many others with good, creative, practical ideas for institutionalizing “best practices” leading to to “due process with efficiency?”

What if we fairly implemented our refugee, asylum, and protection legal framework to “protect rather than reject?”

What if we consistently treated our fellow beings as humans, rather than as “less than human?”

What if we viewed immigration for what it really is: the foundation of our nation and a continuing source of great strength, pride, and optimism for our country of immigrants, rather than pretending that we live on an island and must “wall off” the rest of the world?

This November, vote like your life and the future of our nation depend on it! Because they do!

PWS

08-14-20

🏴‍☠️☠️🤡🤮ANOTHER EOIR SCAM: MORE LAYERS OF MISMANAGEMENT FOR FAILED SYSTEM — More Managers Are No Substitute For Competent Court Management!

Regional Deputy Chief Immigration Judge

08/10/2020 10:00 AM EDT

Executive Office for Immigration Review (EOIR)
Office of the Chief Immigration Judge
Falls Church, Virginia
Announcement #: SES-10606886-20-AS
Application Deadline: September 8, 2020

Typical work assignments will include:

·         Directing oversight of activities of formal, quasi-judicial hearings and proceedings conducted by Immigration Judges within a designated region.

·         Providing executive leadership for court matters involving deportation, exclusion, removal, rescission, bond and related decisions and actions of Immigration Judges and Court personnel.

·         Managing the analysis and evaluation of judicial decisions to determine impact on immigration judges, court policies and procedures and/or the immigration judge program.

·         Providing technical direction of court staff through Assistant Chief Immigration Judges, Immigration Judges and Court administrators through the region.

Number of Positions:
6 vacancies in multiple locations: San Francisco, CA, Chicago, IL, New York, NY, Miami, FL, Las Vegas, NV, Houston, TX

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

It never hurts to restate the obvious when dealing with the never-ending, always worsening mess at EOIR.

A system that competently selects well-qualified professional judges needs very little “management” at all, since judges are independent decision makers. Qualified judges basically are “self-managing.”

What they do need is competent professional administrators who secure the necessary resources, technology, equipment, and training for those judges to function efficiently and professionally while steering clear of any interference in substantive judicial decision making. Administrators responsible to the judges and public they serve, rather than vice versa as EOIR is now constructed. Indeed, “customer service” at today’s EOIR isn’t just “off the charts” — it never was on the regime’s chart to begin with!

A trial court also needs a competent, functional appellate division that shows leadership in promoting due process, fundamental fairness, and best practices throughout the system through clear, cogent, and intellectually honest precedents.

Right now EOIR has almost nothing it needs and everything it doesn’t. Not surprisingly, this incredibly FUBAR system is a total dysfunctional mess where injustice reigns supreme and “management” squanders taxpayer funds while constantly turning complete disorder into mind-boggling morale killing unrelenting disasters.

Due Process Forever! Today’s FUBAR EOIR, Never!🤮

PWS

08-10-20

🛡⚔️🗽👍🏼🇺🇸ROUND TABLE SLAMS LATEST BOGUS “KILL ASYLUM” PROPOSED REGS IN COMMENTS TO REGIME!

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

Comments – Security Bar (COVID) Asylum Reg (PDF)

The Round Table of Former Immigration Judges is composed of 46 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. We have centuries of combined experience adjudicating asylum applications and appeals. Our members include nationally- respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.

We view the proposed rule as an improper attempt to legislate through rule making. The proposed rule is inconsistent with Congressional intent and with our nation’s obligations under international law. The rule is also overly broad, and as worded, could be applied to virtually anyone. It requires determinations to be made based on pure speculation by officials lacking any required expertise in the subject. And the rule fails to consider much lesser, more humane approaches to address the issue.

. . . .

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

Read our complete comment at the above link.

Gimmicks, cruelty, illegally, gimmicks, cruelty, illegality. Over and over the regime targets asylum seekers with “crimes against humanity.”

Although all DHS statistics should be regarded as suspect, the recent assertions that the regime”s killer tactics are protecting America against COVID appear particularly bogus — especially given the Trump regime’s gross failure to protect Americans from the pandemic and the frequent myths and false claims blabbered by Trump in a pathetic attempt to downplay the disaster caused by his stupidity and malicious incompetence.

The net result of all these “Miller-hatched” cruel gimmicks to eliminate legal immigration (without legislative authority) appears to be steadily increasing levels of extralegal immigration. And that’s just the folks who get caught. Who knows how many get through and simply get lost in the interior? So, instead of a rational legal immigration and refugee system that encourages screening, testing where necessary, taxpaying, and data collection, thanks to the stupidity and cruelty of Trump and Miller, the fecklessness of Congress, and the complicity of the Supremes, we have created a larger than ever extralegal immigration system.

Diminishing ourselves as a nation,🤮 won’t stop human migration🗽!

PWS

08|10-20

🏴‍☠️DUE PROCESS FARCE CONTINUES AT BIA: “Good Enough For Government Work” Standard For Notice of Address Only Applies To DHS — Foreign Nationals Held To Strict Compliance — Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

The Board of Immigration Appeals has issued a decision in the Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

BIA PANEL: MALPHRUS and HUNSUCKER, Appellate Immigration Judges; GEMOETS, Temporary Appellate Immigration Judge.

OPINION BY: HUNSUCKER, Appellate Immigration Judge:

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

So, let’s get this a straight. The DHS has the burden of proof on notice and removability in an in absentia case. The BIA has previously said that writing some street in Tijuana, Mexico is a sufficient address for DHS to provide EOIR as part of the “Remain in Mexico” program. Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020). https://immigrationcourtside.com/2020/01/31/bia-any-ol-notice-is-good-enough-for-endangered-asylum-seekers-orbited-to-mexico-beyond-matter-of-j-j-rodriguez-how-judges-at-all-levels-are-abandoning-the-rule-of-law-enab/

I call this the “good enough for Government work” approach. So, if the Government is basically allowed to get away with minimal compliance with address notice, one would expect an equally lenient approach for foreign nationals, who, after all, have far less control over the system and far fewer resources than the Government. No way!

When an individual apparently writes a “b” instead of an “h” (notice any similarity?) in a U.S. Street address, it’s “tough noogies.” That’s even where there is some evidence to suggest that the DHS actually had the correct address somewhere in their files. Normally, it would be standard practice for an Immigration Judge to check the address with DHS before entering an in abstentia order. Additionally, the BIA surmised that the some unknown individual at the incorrect address must have received and rejected the letter.

That’s not to mention the practical reality that even if the respondent had corrected his address using the proper form, there is little chance of it actually getting in the Court’s file in a timely manner. I used to marvel at the piles of unfiled address change forms I witnessed at various times during my EOIR career.

I’d also bet that it would have taken less time and effort to reopen this case and give this respondent a merits hearing than it took to deny the MTR, have it appealed to the BIA, and make it a precedent. There was a time when EOIR actually viewed its function as providing due process hearings. Now, the idea is to use as many gimmicks as possible to avoid fear hearings and produce numbers.

In other words, Billy the Bigot’s BIA will do whatever is necessary to assist their “partners” (actually “superiors”) at DHS to rack up removal orders. Because, foreign nationals are “numbers” and “stats,” not humans. And if you can do it “in absentia” — that is without any real hearing at all — so much the better.

PWS

08-05-20

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