😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.”

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

CODE RED! 🆘☠️⚰️IMMIGRATION COURTS FAIL AS GARLAND FLAILS — With Human Lives In The Balance & A Catastrophic Collapse Of System On The Horizon, Garland “Rearranges The Deck Chairs On The Titanic!” — “Aimless Docket Reshuffling” is a “Clown Court Strategy” 🤡 But, It’s No Laughing Mater For The Asylum Seekers & Their Lawyers Stuck In Garland’s Dysfunctional Mess!🤮

Deepa Fernandes reports for the SF Chron:

Waiting nine years for an asylum hearing in San Francisco https://www.sfchronicle.com/bayarea/article/An-El-Salvadoran-attorney-has-waited-five-years-16739505.php

A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.

Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.

In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.

But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.

A growing backlog

Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.

“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”

Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.

The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.

“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.

This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.

Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.

Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.

“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.

Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.

An analysis by the Migration Policy Institute shows that in 17,000 expedited docket cases under previous administrations, the majority of immigrants lacked legal representation and 80% of them were ordered removed without even being in court.

History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.

“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”

. . . .

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

Woman Tortured — “What if Garland had to hang out with us in his backlogs?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read Deepa’s full article at the link.

Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!

The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.

But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.

Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.

As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.

Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”

Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!

Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.

I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!

Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”

Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!

Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!

Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.

Ah, Yes, What Timing!

Just as I was posting this, my friend, Professor Lindsay Muir Harris at UDC Law published what I call the “Practical Scholars Compendium” to the missed opportunities that Garland and other members of “Biden’s Gang With Neither Vision Nor Moral Courage” have been compiling, as documented on Courtside and other blogs! See https://lawprofessors.typepad.com/immigration/2022/01/immigration-article-of-the-day-asylum-under-attack-by-lindsay-harris.html

Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.

Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.

Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.

Star Chamber Justice — ”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice”
Star Chamber
Style

Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.

It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

PWS

01-02-22

☠️☠️ ☠️TRIPLE HEADER — 10TH CIRCUIT FINDS MULTIPLE MATERIAL ERRORS IN YET ANOTHER DISGRACEFUL WRONGFUL ASYLUM DENIAL BY GARLAND’S BIA!🤮

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-corrects-massive-bia-failure-villegas-castro-v-garland#

CA10 Corrects Massive BIA Failure: Villegas-Castro v. Garland

Villegas-Castro v. Garland

“We conclude that the Board erred in three ways. First, the Board erred in overturning the grant of asylum. The Board decided that Mr. Villegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstances. And with the remand, the immigration judge enjoyed discretion to reconsider the availability of asylum. Second, the Board erred in rejecting the immigration judge’s credibility findings without applying the clear-error standard. The immigration judge concluded that Mr. Villegas-Castro’s conviction had not involved a particularly serious crime. For this conclusion, the immigration judge considered the underlying facts and found Mr. Villegas-Castro’s account credible. The Board disagreed with the immigration judge’s credibility findings but didn’t apply the clear-error standard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte deciding that Mr. Villegas-Castro was ineligible for (1) withholding of removal or (2) deferral of removal under the Convention Against Torture. The Board reasoned that the immigration judge had already denied withholding of removal under federal law and the Convention. But the Board’s general remand didn’t prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the applications for withholding of removal and deferral of removal under the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigration judge’s credibility findings, and to reconsider the applications for withholding of removal and deferral of removal under the Convention Against Torture.”

[Hats off to Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner, and Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner!]

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

A prime example of the “any reason to deny culture,” that Garland has allowed to continue, at “work” — although it doesn’t appear the BIA actually did any “work” here beyond insuring that the bottom line in the staff attorney’s draft was against the asylum seeker!

As I raised yesterday, how is it that this fatally flawed group continues to get “Chevron deference” from the Article IIIs?

https://immigrationcourtside.com/2021/12/02/%e2%9a%96%ef%b8%8f4th-cir-chief-circuit-judge-roger-gregory-dissenting-castigates-colleagues-on-grantng-chevron-deference-to-bia/

Also, why isn’t every group of legal professionals in America “camped” on Judge Garland’s doorstep @ DOJ demanding meaningful change @ EOIR as the degradation of American justice and demeaning of human lives continue largely unabated?

🇺🇸Due Process Forever!

PWS

12-03-21

THE GIBSON REPORT — 10-18-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Phantom NTAs, Rubber Stamps, Elimination Of Masters, & Other Insanity Surfaces @ Garland’s EOIR “Clown Courts” 🤡

As a side note, the phantom NTA issue and literal IJ rubber stamp story are both crazy.

If you or any of the retired IJs wanted to follow-up on the phantom NTA issue, I just wanted to pass along a good source: CLINC webinar @1:07:08: https://cliniclegal.org/training/archive/orders-border. It also affects the ability to file motions to change venue because DHS is serving the NTA on EOIR the day of the master calendar hearing, so there are no proceedings for which to file a motion until the day of court.

-Elizabeth

·         AILA: Liaison Update: Key Takeaways from Listening Session on Immigration Detention Ombudsman

·         AILA: Liaison Update: Key Takeaways from Stakeholder Engagements with DHS Operation Allies Welcome Leadership

·         AILA: Practice Alert: Biden Administration Plans to Rescind COVID-19 Travel Bans and Instead Require Proof of Vaccination

·         AILA: Practice Pointer: What You Need to Know About the Third Country Transit Ban

·         AILA: Sample Briefs and Resources

·         AILA: Asylum Cases on Social Group

·         AILA: Asylum Cases on Serious Nonpolitical Crime

·         AILA: Asylum Cases on Political Opinion

·         AILA: Asylum Cases on Motion to Reopen

AILA: Asylum Cases on Miscellaneous

·         AILA: Asylum Cases on Deferral of Removal Under CAT

AILA: Asylum Cases on Credibility

·         CLINIC: Ethical Considerations in Using Technology for Legal Services

·         CLINIC: Liberian Refugee Immigration Fairness: FAQs for Legal Practitioners

·         CRS: The Department of Homeland Security’s Reported “Metering” Policy: Legal Issues

·         CRS: Visa Waiver Program

·         DHS OIG: ICE Needs to Improve Its Oversight of Segregation Use in Detention Facilities

·         DHS: Seneca Mental Health Services Resources

·         EOIR: Webex and Open Voice Information for NYC Immigration Judges (attached)

·         Hoppock: Here Are the BIA Chairman’s Memos From 2004 to 2018 Obtained Through FOIA

·         IRAP: Country conditions for Afghans

·         Migration Policy Practice: Children’s Experiences On The Central America–Mexico–United States Migration Corridor: Data And Policy

·         MPI Launches 20th Anniversary Podcast Series, World of Migration, Examining the Evolution of the Migration Policy Field and Where It Goes Ahead

·         USCIS: How to Make Your Communication with the USCIS Contact Center More Effective

EVENTS

10/19/21 Waivers of inadmissibility in U, T and VAWA cases

10/19/21 Webinar Series: Putting the Case Together

10/19/21 The Categorical Approach Now

10/20/21 Univision National Network’s Jorge Ramos in Conversation with Three DREAMers Who Fought the President and Won

10/20/21 What is Happening with DACA?

10/20/21 U Visa and Bona Fide Determination Process for Victims of Qualifying Crimes

10/20/21 Working with Experts in Immigration Court

10/21/21 New York District – Contact Center stakeholder engagement

10/21/21 U Visa Webinar Series: The Definition of Victim

10/21/21 Translating Into Success: Key Features of U.S. State and Local Language Access Laws and Policies

10/22/21 Hiroshi Motomura in Conversation with Leading Advocates on Efforts Toward Executive Action Today

10/22/21 Ahilan Arulanantham in Conversation with Leading Scholars on the Scope and Limits of Executive Branch Authority Over Immigration

10/26/21 Emerging Issues in Asylum Law

10/26/21 Legal Trends in Consular Adjudications: Updates to the Foreign Affairs Manual

10/27/21 Challenging Expedited Removal and Reinstatement Orders

10/28/21 What’s Old Is New Again: “Hail Mary” Relief and Creative Lawyering Options That Are Back!

11/3/21 U Visa Adjustment

11/4/21 IDP Training: ICE Detainers in NYC: The Impact on State Criminal Cases

11/7/21 Together We Welcome: A National Faith Gathering to Strengthen Support for Refugees, Immigrants and Migrants

11/9/21, 11/16/21 Two-Part Introduction to Asylum Law and Procedure

11/10/21 Remedies for Surviving Relatives

11/11/21 Inadmissibility: A Look at Common Grounds and Red Flags

11/16/21 Advocating for Prosecutorial Discretion Under the Current Enforcement Priorities

11/16/21 Considerations for I-601A Waivers and I-212

11/18/21 Dealing with Post-Consular Interview Nightmares for Immigrant Visas

11/23/21 Establishing Social Group in Asylum Claims

11/23/21 But I’m Not an Expert! What You Need to Know About Common Non-Immigration Questions Your Clients Expect You to Know

11/29/21-12/3/21 Partial to Full Accredited Representative Initiative 2021

12/1/21 54th Annual Immigration and Naturalization Institute

12/2/21 Post-Conviction Relief For Immigrants: New Laws, New Developments, New Advice

12/7/21 Hardship in Non-LPR Cancellation Cases

12/9/21 December Immigration Update

12/15/21 FOIA

02/03/22 Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas

02/04/22 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2022

ImmProf

Monday, October 18, 2021

·         Kidnapping on Rise in Haiti

Sunday, October 17, 2021

·         Good judge? Bad judge?

·         Presidential Determination on Refugee Admissions for Fiscal Year 2022

·         Trouble in Paradise? Tensions Flare between Biden Administration Officials and Immigrant Activists

Saturday, October 16, 2021

·         Guantánamo’s Other History

·         Biden Administration to Bring Back “Remain in Mexico” Policy pursuant to Court Order

Friday, October 15, 2021

·         Good News, Bad News: Biden Narrows Expedited Removal, Continues Title 42 Expulsions

·         Afghan Immigrants in the United States

·         Children’s experiences on Central America-US migration corridor highlighted in IOM report

·         From the Bookshelves: Saving the Freedom of Information Act by Margaret B. Kwoka

·         ABA Commission on Immigration offers students “hands-on” experience with people in detention

·         The Gift That Keeps on Giving? Judge Orders Trump To Give Deposition In Immigration Activists’ Suit

·         Immigration Article of the Day: Immigration Law’s Arbitrariness Problem by Shalina Bhargava Ray

Thursday, October 14, 2021

·         From The Bookshelves: Beautiful Country by Qian Julie Wang

·         Democrats consider new immigration reform proposal

·         Immigration Article of the Day: Are People in Federal Territories Part of “We the People of the United States”? by Gary Lawson and Guy I. Seidman

Wednesday, October 13, 2021

·         The Role of Mental Health Evaluations in Immigration Court Proceedings

·         UNLV Law Dean Search

·         From the Bookshelves: Mexican American Civil Rights in Texas: Latinos in the United States (Robert Brischetto and J. Richard Avena, editors)

·         US borders reopening to tourists, travelers

·         Biden administration defends H1-B wage rule

·         Migrants and refugees caught up in Belarus-EU “hybrid warfare” are freezing to death in no man’s land

·         Supreme Court to consider whether to reinstate death penalty for Boston Marathon bomber

·         Immigration Article of the Day: “Discretion and Disobedience in the Chinese Exclusion Era” by Shoba Sivaprasad Wadhia

Tuesday, October 12, 2021

·         DHS Memo on Worksite Enforcement

·         Democratic Senators Lambaste Biden Haitian Policies

·         Afghan Immigration Fears Prompt Greece to Increase Number of Guards at Turkish Border

·         Immigration Article of the Day: Introduction to the Symposium on COVID-19, Global Mobility and International Law by Thomas Gammeltoft-Hansen, Tenday Achiume, & Thomas Spijkerbber

Monday, October 11, 2021

·         Economist David Card, Who Studied The Effects of Mariel Boatlift Migration on the Miami Labor Market, Wins Nobel Prize

·         From the Bookshelves: Our Stories Carried Us Here Hardcover by Tea Rozman Clark

·         Trapped In Diplomatic Limbo

·         Afro Mexicanidad: A Symposium

·         Immigration Article of the Day: The Challenge of Immigration: A Radical Solution by Gary Becker

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

Alfred E. Neumann — Judge Garland isn’t worried! HE doesn’t have to practice before the dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

Absolutely “nutsos!” But just “another day at the office” in the three-ring circus 🎪🤹‍♀️🤡 that “Ringmaster Garland” calls his “courts!” Where’s the accountability for this disgraceful mess? Where is the Congressional oversight? What happened to the essential “Article I legislation” to remove this continuing clown show from a flailing and failing DOJ?

🇺🇸Due Process Forever!

PWS

1-21-21

👎🏽IS GARLAND PULLING A SESSIONS-STYLE SHENANIGAN TO COMPROMISE JUSTICE @ EOIR? — Immigration Judge Removed From High-Profile Case After Criticizing DHS!

Sessions in a cage — “Comeback Kid?” — Advocates thought they were getting a welcome change from “Gonzo Apocalypto’s” vile legacy of abuses at EOIR. But, Garland seems to be warming to the idea of “wholly-owned courts” where he can manipulate “his” judges, many of them Sessions-Barr holdovers,” to achieve pro-DHS results in key cases. Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

KCRA3 in Sacramento reports:

https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.kcra.com%2farticle%2fimmigration-judge-omar-ameen-case-replaced-department-justice%2f37551036&c=E,1,yS6wbDb1XxjixHZMWBWlS1g2lSyzCFYmd-OZv1yWPUzG8lSaeKiR8On89auj__3kIGZLWvu2M1thmOJhsYAXibmhhmngZdIxgaC3VpTL2w,,&typo=1

The judge overseeing the last two weeks of hearings and testimonies of Omar Ameen’s immigration case has been changed by the Department of Justice, sources close to the case told KCRA 3.

Ameen was the Sacramento refugee accused of being an ISIS leader and killing an Iraqi police officer in 2014.

Earlier this year, a Sacramento federal judge said there were major problems with the case against Ameen and refuse extradition to Iraq.

However, the U.S. Immigration Department took Ameen into custody the day he was released and began proceedings to deport him, claiming he lied on refugee applications.

Sources told KCRA 3 Investigates that immigration Judge Scott Laurent, after weeks of hearings and testimony in the deportation case, is no longer the judge in the case.

The removal comes just two weeks after Laurent issued an order that was, in part, critical of the government’s case against Ameen.

In particular, Laurent was critical of the Department of Justice for wanting FBI agents to testify for the government, but not be cross-examined by Ameen’s attorneys.

Unlike a criminal court, immigration judges work for the Department of Justice, which is the agency looking to deport Ameen.

No reason was immediately provided for Laurent’s removal from the case.

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

Go to the link to see the TV report!

In what other system can the prosecutor “switch judges,” with no explanation in the middle of a case?

Given the DOJ’s lack of transparency, one has to assume the worst!

🇺🇸Due Process Forever!

PWS

10-13-21

⚖️🗽PROFESSOR JILL FAMILY IN YALE JOURNAL ON REGULATION — Puncturing The Sovereignty Myth — “The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.”

https://www.yalejreg.com/nc/we-have-nothing-to-fear-but-sovereignty-fear-itself/

. . . .

Additionally, the status quo does not guarantee that no one will be present in the United States without permission. In fact, with the plenary power doctrine in place, there are approximately 10 million individuals living in the United States without permission. (And most of them crossed the border legally, entering the territory with legal authorization for some period that expired.) Despite this, the United States continues to exist. Noncitizens, however, are denied more independent adjudicators under the false idea that by denying them we somehow protect the nation’s sovereignty. These are complex lives interwoven with our communities, businesses, schools, and the lives of US citizens. The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.

Perhaps the sovereignty fear is shorthand for something else? Is it an objection to multiculturalism? The reflection of a desire to give the president power to thwart statutory immigration law? Or perhaps courts and policymakers have been invoking the phrase “plenary power” for so long that it has become an out of date, knee-jerk reaction.

Sovereignty and foreign policy will remain intact even with more independent immigration adjudication. The sovereignty fear is a distraction from what really needs our attention; we should not let it stop us from providing fair process.

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

The threat to our democracy hardly comes from those seeking legal refuge to save their lives or to find meaningful work to support their families and contribute to society. A more robust and fair legal immigration system would assist in identifying the relatively small percentage of migrants who seek to do us harm.

No, the bigger threat comes from GOP neo-fascist insurrectionists and their spineless political enablers who actively seek to undermine our democracy with lies and White Nationalist racism.

In a more functional system, Professor Family and those like her who understand and are committed to the “big picture” of American democracy and equal justice for all would be the Appellate Immigration Judges and Article III Judges — jurists ready and willing to stand up to Executive abuses of authority! The Immigration Courts should be the “starting place” for restoring and reinforcing American democracy. Does the Biden Administration have the vision and guts to make it happen?

🇺🇸Due Process Forever!

PWS

08-06-21

⚖️🧑🏽‍⚖️🗽NBC NEWS: IMMIGRATION JUDGES KHAN, MARKS, HONEYMAN, & DORNELL SPEAK OUT ON STRESS, MESS, IN GARLAND’S BROKEN IMMIGRATION COURTS 🆘 🏴‍☠️ — Gabe Gutierrez Reports!

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan, President National Association of Immigration Judges (NAIJ)

Hon. Charles Honeyman — Honorable Charles Honeyman
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

Honorable Lisa Dornell
U.S. Immigration Judge (Retired)
Member, Round Table of Former Immigration Judges

https://www.nbcnews.com/nightly-news/video/immigration-judges-speak-out-on-rise-in-u-s-border-crossings-114715205902

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

Judges Khan and Marks are already on the DOJ payroll. Garland should have brought them in to Falls Church, on at least a temporary basis, to start cleaning up the mess and instituting long overdue due process and judicial independence reforms! The NAIJ which they represent should have been reinstated to represent Immigration Judges.

FULL DISCLOSURE: I am a retired member of the NAIJ.

Recent retirees on the Round Table like Judges Honeyman and Dornell could have been rehired on a temporary basis under available authority to help root out and change the inane quotas, bad precedents, terrible exclusionary hiring processes, and mind-boggling “Aimless Docket Reshuffling” that continues to build backlog, deny due process, and promote reactionary White Nationalist policies in the failed and flailing Immigration “Courts.”

The continuing problems at Garland’s DOJ start with EOIR, but by no means end there! Apparently, Garland’s lackadaisical, permissive attitude toward corruption at DOJ under Trump & his cronies doesn’t get the Hill Dems’ attention unless they and their families were personally targeted by the illegality and misconduct. Otherwise, it’s just the lives of immigrants, asylum seekers, and “the others,” mostly people of color and abused women and children, so who cares?

It’s worthy of noting that it has largely fallen to the press and public interest groups to expose the corruption allowed to fester at Trump’s DOJ. Only then does Garland make tardy and half-hearted efforts to investigate or take action. Cleaning up corruption, changing bad and illegal policies, and rooting out those who carried out such abuses should have been “job one” for the incoming Attorney General. Instead, it’s an “afterthought,” at best!

And, of course, good government and ethics aren’t part of the “institutional culture” @ DOJ that Garland is so anxious to defend. Does every Administration have a “right” to have its illegal actions and corruption covered up and defended by its successor? Will it really deter “good government” if you believe that you might be held accountable by the next Administration for acts of unconstitutionality or illegality?

How come using the law as a “deterrent” is fine as applied to migrants of color, but “deterring” present and future DOJ bureaucrats and politicos from abusing the law in support of a corrupt Administration’s illegal policies isn’t?

Sure, I recognize that guys like Sessions and Barr have a perverted view of what’s unconstitutional. But, the object is to make it difficult for horrible opponents of American democracy like them to become Attorney General in the future and to insure that there will be institutional resistance to any future efforts to corrupt our justice system.

“Normalizing” the unprecedented overtly corrupt behavior of theTrump regime is a continuing problem! We need to fight it all levels of our society and government!

Dishonesty appears to be the main “bipartisan institutional value” at DOJ. No wonder it was so easy for Sessions and Barr to get their corrupt agendas carried out by career lawyers and bureaucrats!

Unless and until Congress finally lights a fire under Garland and his team, and creates an independent Article I Immigration Court, that’s unlikely to change.

Our DOJ is quite obviously broken and reeling. Why isn’t fixing it one of our highest national priorities?

🇺🇸Due Process Forever!

PWS

06-13-21

⚖️HOPEFUL SIGN ON ARTICLE 1? — At Oversight Hearing, Garland Expresses Modest Endorsement Of Judicial Independence & Open Mind On Article 1 — “As independent as possible,” whatever that means.

Judge Merrick Garland — Attorney General Merrick B. Garland — “Is he open to Article I? It would be nice to think so, but still plenty of reason to be skeptical about his intent for EOIR!’
Official White House Photo
Public Realm

Here’s the audio:

https://www.appropriations.senate.gov/hearings/a-review-of-the-presidents-fiscal-year-2022-funding-request-for-the-us-department-of-justice

The relevant remarks are at 1:59.

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

While it’s always good to be optimistic, to date, “as independent as possible” has meant “as independent as four years of White Nationalist weaponization and meddling from Trump, Miller, Sessions, Barr, Whitaker, Hamilton, McHenry, et al, left them.” That’s NOT independent at all! Quite the OPPOSITE. In many ways there is less judicial independence and more political interference at EOIR now than there was when it was located within the “Legacy INS” before EOIR was created in 1983.

I personally will believe it to the extent that it’s reflected in actions. That means things like vacating restrictive anti-immigrant precedents, restoring asylum for gender-based violence, re-instituting and encouraging Administrative Closing, slashing the backlog by working with parties to remove the vast majority of “non-priority” cases that could be handled in alternative ways, installing e-filing, eliminating bogus “performance work plans,” repudiating “production quotas,” replacing Trump’s BIA with better-qualified judges, revising judicial recruiting and hiring practices to attract more diverse expert candidates from the private/NGO sector, considering stakeholders’ views and recommendations on important policies BEFORE announcing them, establishing a transparent complaint and tenure review process involving the private bar, re-establishing a robust asylum system at the border, upgrading judicial training and using “outside DOJ” experts to conduct it, eliminating the unnecessary “Office of POlicy” from the bloated bureaucracy, hiring experts in judicial management for administrative positions, encouraging written over oral decisions on cases likely to be appealed, expanding the number of judicial law clerks assigned to judges, eliminating agency bureaucracy and redirecting resources to improving local courts and furthering independence, re-recognizing the NAIJ and listening to their suggestions, working cooperatively with the pro bono bar to increase representation, rethinking the overuse of televideo and the presence of “courts” in detention center settings (e.g., prisons in the “New American Gulag”), selecting and retaining only judges who will treat all parties, counsel, and court personnel with respect and professionalism, actively working to overcome the “culture of denial, White Nationalism, and misogyny” that has permeated EOIR over the past four years and still exists, ending docket meddling from Falls Church and DOJ and returning control to local judges, eliminating “Aimless Docket Reshuffling” by politicos and their enablers, reducing the use of single-judge orders at the BIA, selecting expert Appellate Judges for the BIA who will issue some positive as opposed to only negative precedents, refusing to open and closing “courts” located in obscure, out of the way prison locations selected by DHS in large part because of the absence of pro bono lawyers, returning full authority to grant continuances to local judges, no longer referring to DHS (but not respondents’ counsel) as “our partners,” ending the use of derogatory terms and false claims by DOJ officials to Immigration Judges about private lawyers, stopping the intentional manipulation of statistics bv DOJ and EOIR management to further political agendas, ending the “muzzle” on Immigration Judges and encouraging them to participate in public professional activities, promoting best practices rather than institutionalizing worst practices, and again making “through teamwork and and innovation, guaranteeing fairness and due process for all” the absolute touchstone at EOIR, for starters.

To date, NONE of the things on the foregoing list has been accomplished or proposed by Garland and his team. Indeed, a number of his actions, like engaging in “Aimless Docket Reshuffling” by establishing a “Dedicated Docket” for new asylum cases without consulting the stakeholders in advance, and appointing 17 new judges selected by Barr under defective and flawed procedures that discouraged diversity and “disfavored” private sector candidates, are in direct contravention of due process and best practices and serve to discourage, rather than nurture, judicial independence.

Moreover, as I have previously said, I see no evidence that Garland has hired or reached out to any of the types of progressive experts who could actually implement these reforms necessary to achieve judicial independence and promote due process. You can’t get the job done for judicial independence and due process without a radical personnel shakeup at EOIR! The current group at both DOJ and EOIR just doesn’t cut it, as ever a casual observer could tell Garland.

So, until I see some ACTUAL progress, beyond mushy rhetoric, color me skeptical about Garland’s plans for EOIR.

🇺🇸🗽⚖️Due Process Forever!

PWS

06-10-21

🇺🇸🗽⚖️PROGRESSIVE BLOWBACK GROWS AGAINST GARLAND’S IMMIGRATION BLUNDERS — Failure To “Clean House” At Totally Dysfunctional EOIR, Inaction On Basic Due Process, Human Rights Reforms, Appointment Of Trump-Selected Judges Infuriates Biden Supporters, Angers Ethnic Communities — Those Who Fought Trump Regime In The Trenches For Last 4 Years To Save Lives & Preserve American Democracy Not Amused By Garland’s Disrespectful, Dismissive Approach To Human Rights Imperatives!

Suzanne Monyak
Senior Reporter, Immigration
Law360

CQ NEWS

Groups to AG: Immigration courts need new leaders, hiring review

May 19, 2021 – 4:30 p.m. By Suzanne Monyak, CQ

Dozens of human and civil rights organizations called on Attorney General Merrick Garland on Wednesday to overhaul leadership and review hiring decisions at the U.S. immigration court system, raising concerns of politicized hiring under the prior administration.

In a letter obtained by CQ Roll Call, the 70 organizations accused the Trump administration of transforming the immigration courts, housed within the Justice Department’s Executive Office for Immigration Review, “into a conveyor belt for deportation” and of “systematically hiring personnel to carry out President Trump’s anti-immigrant agenda.”

Under the previous administration, EOIR promoted a number of immigration judges with high asylum denial rates, as well as judges with a history of misconduct complaints.

“Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families,” wrote the organizations, which include the American Immigration Lawyers Association, National Immigration Law Center, Human Rights First and others.

In addition to reviewing personnel decisions made under the Trump administration, the advocates urged Garland to “immediately install new leadership to all key posts” and “diversify the immigration judge corps” by hiring more judges with nonprofit backgrounds.

The organizations faulted the Biden administration for following through with the recent hires of 17 immigration judges, announced earlier this month, most of them with backgrounds as criminal prosecutors and Department of Homeland Security lawyers.

“Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution,” the groups wrote.

Garland, confirmed to the helm of the Justice Department in March, inherited a slew of policy changes to the immigration court system implemented under the Trump administration, including policies aimed at speeding up case adjudication and tightening asylum eligibility.

CQ Roll Call reported in 2019 that EOIR leaders revised hiring procedures to make it easier to permanently install certain immigration judges to the Board of Immigration Appeals, the courts’ appellate board that has the power to issue precedential rulings shaping immigration law.

DOJ leadership under the former administration also successfully petitioned to dismantle the immigration judges’ union, which critics say further undermines judges’ discretion over their own caseloads.

A group of senators announced last fall that the Government Accountability Office launched an investigation into the Trump administration’s management of the immigration courts, including its response to the COVID-19 pandemic.

Last month, the Justice Department’s inspector general released a report faulting EOIR for poor communication and a lack of transparency when notifying lawyers and employees about pandemic-related court closures and exposure.

Garland, a former appeals court judge, has yet to rescind most of those changes, fueling calls from lawmakers and advocates to step in.

Last week, Sen. Dianne Feinstein, D-Calif., wrote Garland requesting he rescind two decisions issued by former Attorneys General Jeff Sessions and William Barr that make it harder for domestic abuse survivors, and individuals targeted by gangs or others as a result of their family ties, to qualify for asylum.

“This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” Feinstein wrote.

In January, top Democrats on the House Oversight and Reform Committee also called on Garland to “take all necessary actions” to protect the immigration judges’ union from decertification.

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

Law360 also provided coverage of this issue. https://www.law360.com/articles/1386538/advocates-seek-to-erase-trump-s-immigration-court-legacy

Also, expect a blast from our Round Table soon about the ongoing due process outrage at EOIR and Garland’s failure to address it!

Next firestorm on the horizon for Garland’s inept, tone-deaf immigration team: Anger and outrage stemming from failure to rescind Barr’s illegal and disgraceful “decertification” of IJ Union — the NAIJ. More “Day 1 Stuff” still awaiting action by Garland as the justice system deteriorates under his feet!

FULL DISCLOSURE: I am a retired member of the NAIJ.

Holy cow! It’s not like lots of progressives didn’t tell the Biden Transition Team, Garland, and anyone else who would listen that radical, progressive Immigration Court reform needed to be a “Day 1” priority at Justice to avoid further disaster.

Moreover, as recently pointed out by Dean Erwin Chemerinsky (Berkeley Law) and Professor Michele Goodwin (UC Irvine Law) virtually every aspect of the Trump regime’s attack on American democracy began with and went through the immigration system.https://lawprofessors.typepad.com/immigration/2021/05/immigration-article-of-the-day-michele-goodwin-erwin-chemerinsky-trump-administration-immigration-ra.html

Compromising due process in Immigration Court and weaponizing EOIR were the keys to the Trump regime’s constitutional deconstruction effort. Consequently, it’s insane for Garland or any other member of the Biden Administration to think that economic equality, voting rights, racial justice, eradication of hate crime, job creation or any other major objective will be attained without new progressive leadership and aggressive progressive due process reforms in Immigration Court. Won’t happen!

You can’t promote social justice while running Stephen Miller’s Star Chambers at EOIR with judges hand-selected by “Billy the Bigot Barr” under flawed procedures.

🇺🇸⚖️🗽Due Process Forever!

PWS

05-20-21

REBEKAH WOLF @ AMERICAN IMMIGRATION COUNCIL ECHOES MY CRITICISM OF GARLAND’S INEXCUSABLE FAILURE TO PROMOTE DIVERSITY, SELECT PROGRESSIVE EXPERTS IN INITIAL IJ PICKS — A Wasted Opportunity That Neither Progressives Nor The Biden Administration Can Afford!

https://immigrationimpact.com/2021/05/13/immigration-judges-under-biden/

First Round of Biden Immigration Judges Fails to Increase Diversity

Posted by Rebekah Wolf | May 13, 2021 | Due Process & the Courts, Immigration Courts

The Biden administration announced its first round of immigration judge appointments on May 6. Unfortunately, the immigration court appointments do not show the commitment to diversity that President Biden has demonstrated in his federal court appointments.

All of the new judges had received conditional offers from the Trump administration. The current administration was under no obligation to continue with the appointments, however. Advocates expressed disappointment in the hires and lack of balanced perspectives and backgrounds. Most of the 17 new immigration judges have experience as prosecutors and/or working for U.S. Immigration and Customs Enforcement (ICE)—and no experience defending immigrants.

Of the 17 new immigration judges, seven have worked for ICE and five have worked as prosecutors. Only two have worked as immigration defense attorneys, both of whom have also worked for ICE. The perceived bias of having worked for years on one side is concerning enough. But many of the appointees also do not have the substantive knowledge some believe is necessary for the position.

Former Immigration Judge Paul Schmidt commented on the appointments, saying:

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring.”

The appointments include one Assistant Chief Immigration Judge (ACIJ) and six supervisory Unit Chief Immigration Judges (UCIJs), a newly invented position. The UCIJs, only one of whom has a background in immigration law, will be working from a new Immigration Adjudication Center (IAC) in Richmond, Virginia. Like at the two existing IACs, these new immigration judges will hear cases by video-teleconference in office buildings that are closed to the public. Litigation is pending over the government’s failure to provide public information on IACs.

Immigration judge appointments strongly affect immigration court decisions. The Trump administration appointed approximately two-thirds of the 520 current immigration judges. With these new judges and along with significant court policy changes, the asylum denial rate increased from 54.6% in fiscal year 2016 to 71.6% in fiscal year 2020.

The number of immigration judges Biden appoints will also affect the immigration court backlog, currently at 1.3 million cases. Biden’s proposed budget calls for hiring 100 new immigration judges, which many experts say is insufficient. Still, the need for expediency in hiring additional judges cannot outweigh the need for a balance of experience on the bench.

Over a million people are involved in an immigration court system that is inconsistent and unfair. The Biden administration should apply its commitment to judicial diversity to immigration judge appointments, especially a diversity in perspectives and experience.

Ultimately, immigration courts will not be free of the bias inherent to being part of the same branch responsible for prosecution. As advocates have longed called for, Congress must establish Article I immigration courts for immigration proceedings to be truly fair and independent.

FILED UNDER: immigration judges

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

To date, Garland’s lousy performance @ DOJ gets an “F.” Simply not acceptable with lives on the line!

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color, Women, & Asylum Seekers.”

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-18-21

🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership! — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

EYORE — “Eyore In Distress” — Garland’s failure to set tone of due process, human rights, excellence, independence @ EOIR threatens U.S. Justice System — could led to downfall of American democracy!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html?action=click&module=Opinion&pgtype=Homepage

Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Immigration Courts Aren’t Real Courts. Time to Change That.

May 8, 2021

Image

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.

Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.

“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.

The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.

How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.

At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”

By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.

If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.

The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.

The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.

In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.

First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.

This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.

A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.

One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.

If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.

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

We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!

As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insulting stewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!

It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.

Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?

For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”

“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!

The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23” — a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”

Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!

As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!

Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.

In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!

As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.

Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!

Due Process Forever!

PWS

05-09-21

🤮👎🏻SHOCKING BETRAYAL@ “JUSTICE” — GARLAND DISSES PROGRESSIVE EXPERTS WITH SECRET APPOINTMENTS OF 17 UNQUALIFIED IMMIGRATION JUDGES! — New AG’s Open Contempt For Racial Justice, Due Process, Human Rights Enrages Advocacy Community Who Believed & Supported Biden-Harris Campaign Pitch! — THE REINCARNATION OF “DEEP THROAT” @ EOIR “BLOWS WHISTLE” ON NEW AG’S ATROCIOUS FAILURE TO TAKE SERIOUSLY MOCKING OF DUE PROCESS, INSTITUTIONALIZED RACISM, MISOGYNY, LACK OF SCHOLARSHIP, AVERSION TO PRACTICAL PROBLEM SOLVING IN AMERICA’S DEADLY, DYSFUNCTIONAL STAR CHAMBERS!⚰️☠️🏴‍☠️

Deep Throat — Reincarnated @ EOIR? — Creative Commons License

Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

Recently, some of America’s top legal minds were “wordsmithing” their “practical scholarly” advice on what actions Judge Garland should take to begin straightening out his EOIR mess. Common sense steps to slash the largely self-created Immigration Court backlog of an astounding 1.3 million cases actually could and should have been taken within hours of Garland’s swearing in as Attorney General. But, unknown to these experts, the battle they steadfastly had been fighting for the past four years in behalf of due process, common sense, and humanity in a broken system already was lost.

Basically, Garland and his team had secretly delivered the “big middle finger” to progressives earnestly seeking to assist and guide them in the right direction on long overdue reforms at Garland’s incredibly backlogged, totally dysfunctional, anti-due-process, Immigration “Courts” that don’t fit any known American definition of “court.” For while the wheels of scholarly, problem-solving brainpower were grinding away, Garland had cavalierly and clandestinely handed out 17 of the most important (and certainly most readily available to progressive judicial candidates) Federal Judicial positions to unqualified insiders and prosecutors basically “in the Stephen Miller White Nationalist pipeline.” Adding insult to injury, Garland and his lieutenants covered up their disgraceful actions. But, thanks to a reincarnated “Deep Throat” @ EOIR (see, Watergate for newer generations), we now know the truth.

According to “Deep Throat 2021,” (“DT-21”) it’s worse than I previously thought about Immigration Judge appointments. (And, I thought it was bad.) Garland actually secretly appointed 17 new IJs in April, but EOIR hasn’t released the names publicly because they (rightly) fear “the blowback” from Dems and progressives.

So, who is Team Garland” trying to please? “Gauleiter” Stephen Miller? “Billy the Bigot” Barr? Gene Hamilton? Donald Trump? Jeff “Gonzo Apocalypto” Sessions? Chad “Wolfman” Wolf? Ken “Cooch Cooch” Cuccinelli? “Teddy the Traitor” Cruz? Tom “Blacks & Hispanics Should be Pickin’” Cotton?

The 17 include some for the VTC black box “court” in Richmond. The only one that went public was a story a judge himself placed. That’s apparently the one that Dan Kowalski and I picked up. According to sources, none of Garland’s new judges are good for due process or for progressive, expert, independent judging.

Also, there’s a rumor that the open BIA position is going to go to an “EOIR insider,” not someone from the outside who could help restore due process and fundamental fairness.

Let’s see, so far the Biden Administration has had exactly zero progressive Federal Judges confirmed by the Senate. Meanwhile, over at DOJ, Garland has handed out these 17 powerful judgeships with life or death authority serving on the front lines of racial justice in America to non-progressives apparently recommended and tapped by his restrictionist predecessor.

Make sense? Only if you’ve watched past Dem Administrations’ inept handling of the Immigration Courts.

In positive news, there’s “internal chatter” that EOIR Deputy Director Carl C. Risch, a political hack “burrower” from the Trump Administration, is leaving EOIR.

But, “DT-21” is still gravely concerned that “Millerite” BIA Chair David Wetmore (Maury Roberts must be turning over in his grave) has yet to be removed with his “probationary period” set to expire at the end of this month. What, exactly, have been Wetmore’s contributions to human rights scholarship, “applied due process,” fundamental fairness, racial justice, and fair treatment of female asylum seekers that justify his continued tenure as essentially the “Chief Justice of Immigration?”

Garland’s malfeasance at EOIR is not just disappointing, but totally outrageous! On Tuesday, he disingenuously asked the House for more money to promote civil rights while running Star Chambers of institutionalized racism that are undermining the American justice system at the critical “retail level.”

Those advocates who almost single handedly kept the American justice system afloat by successfully challenging many of the unconstitutional racist actions of the Trump immigration kakistocracy once again find themselves “on the outside looking in.” Meanwhile, Judge Garland, who was hiding out above the fray @ the DC Circuit, treats them as “chopped liver” while continuing White Nationalist, anti-due-process policies and precedents initiated by Trump and his cronies.

How out of touch is Garland’s proposal to the House yesterday to address the Immigration Court backlog by casting 100 new Immigration Judges into this mess? (Presumably, these positions will be handed out “like candy” to more non-expert, non-diverse, non-due-process oriented insiders and former government prosecutors.) Well, even with many more Immigration Judges on the bench (more than twice as many as at the end of the Obama Administration), it’s been about two decades since EOIR has decided more cases than it has docketed! That’s how “Aimless Docket Reshuffling” by DOJ politicos and EOIR bureaucrats builds uncontrollable backlogs!

Assume the highly unlikely, that under Garland, without any more quotas, corner cutting, or other anti-due-process gimmicks, the existing nearly 600 judges could keep “even” with new filings. Then, once selected, trained, and on duty (a process that took the Obama Administration an astounding average of two years), “Garland’s 100 new judges” could devote themselves to “backlog reduction.” At the DOJ’s quota of 700 cases per judge, the new judges could decide 70,000 cases per year. At that rate, it would take them approximately two decades (or five 4-year Administrations) to “wipe out” the backlog.

Sound like a plan? Only if you don’t understand the fundamental, endemic problems plaguing EOIR and have no “real life experience” representing individuals whose hopes, lives, and futures are being ground to dust by EOIR malfeasance on a daily basis!

Folks, this has to stop! Keep pressing those constitutional arguments that eventually will bring Garland’s corrupt, dysfunctional system to a screeching halt. And keep pushing for legislation to take this ungodly mess out of the DOJ. Also, keep reminding President Biden who helped get out the vote and get him his job. And, where is our African/Asian American/daughter of immigrants Vice President while this outrage at “Justice” is playing out?

How do supposedly progressive women legal luminaries like Lisa Monaco and Vanita Gupta justify their role in Garland’s misogynist, due process farce @ EOIR?

As for “DT-21,” he/she/them remains as enigmatic, unverifiable, unabashed, and unafraid as ever! This is a 21st Century “patriot” tired of the abuse of due process, racism, incompetence, and misogyny that EOIR has fostered over Administrations of both parties. EOIR under Garland is a progressive’s continuing nightmare!

Does “DT-21” lurk in the shadows of a parking garage, beyond the view of security cameras, as did the famous 1970’s namesake? Or, at the outskirts of an interstate rest area? Perhaps in a dark unwatched corner of an overcrowded Zoom chat room?

And, while you’re at it, say a prayer for Linda Lovelace (1949-2002), the original “Deep Throat” (1972), who later said she was an abused spouse coerced into a career as an adult actress that she eventually rejected. Somehow, there is a tie-in between Lovelace’s exploitation in the 1970s and the systemic mistreatment of asylum seeking domestic violence victims that went into high gear during the Trump regime and continues unabated under Garland! Interestingly, before her untimely death in 2002, Lovelace became an anti-porn activist who testified before the Attorney General’s Commission on Pornography (a/k/a “The Meese Commission”) in 1986.

Stay tuned for more “truth from the Tower.” You certainly won’t get it from “Team Garland.”

Due Process Forever!

PWS

05-04-21

🆘NOT ROCKET 🚀 SCIENCE — EXCEPT WHEN DEMS RUN THE DOJ! — Group Of America’s Leading Legal Experts — “Practical Scholars” — Ask Judge Garland To Immediately Slash Backlogs To Align His Now Dysfunctional, Unjust Immigration Courts With Administration’s Stated Priorities — This Should Have Been “Day 1 Stuff” For Judge G, Who Inexplicably Has Stephen Miller “Plants” and Holdovers In Key Positions In Huge, Broken, “Life Or Death” Federal Court System That Controls The Future Of American Democracy!

Here’s the letter to Judge Garland:

April 30, 2021
The Honorable Merrick B. Garland Attorney General of the United States U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001

RE: U.S. Department of Justice Authority to Remove Non-Priority Cases from the Active Docket of the Nation’s Immigration Courts

To Attorney General Garland:

As immigration law teachers and scholars, we write to express our opinion on the scope of executive branch legal authority for the Executive Office for Immigration Review (EOIR) to utilize well-established administrative tools to address the historic backlog of cases pending in immigration courts. Each case in the backlog involves an immigrant, many waiting for years to have a “day in court” to defend against charges of removability or to have an application for relief adjudicated. The Attorney General, through EOIR, has the authority to address the immigration court backlog by rapidly and systemically removing nonpriority cases from the active docket.1

For years, the immigration court docket remained relatively steady, hovering between 100,000 and 200,000 cases.2 During the Obama administration, however, the system began to accumulate a substantial backlog, eventually rising to over 500,000 cases.3 These numbers continued to spike during the Trump administration. Currently, the immigration court backlog sits at 1.3 million cases,4 which Lisa Monaco, President Biden’s nominee for Deputy Attorney General, has acknowledged is a “direct impediment to a fair and effective system.”5 Addressing the immigration court backlog is critical to restoring the integrity of the immigration court system.

As a consequence of the immigration court backlog, the average wait time for respondents’ next immigration court hearing, measured from the time a case entered the immigration court docket, is now over 1,600 days.6 Less than 50% of all cases now pending in the immigration backlog are even set for an individual merits hearing, which means many cases will require subsequent hearings, resulting in additional delay.7 This backlog impedes the proper functioning of the immigration court system and its ability to dispense justice. It also undermines core administrative law values that include but are not limited to consistency, efficiency, public acceptability, and transparency.

The immigration backlog also impacts immigration judges, who face crushing caseloads, now approaching 3,000 cases per judge.8 Such caseloads undermine the ability of immigration judges to reliably and competently complete the complex legal analysis and careful credibility and discretionary determinations that removal cases demand.9 The backlog also harms immigrants, who face years of legal limbo while their cases are pending. This legal limbo can be destabilizing to families and communities and delay immigrants’ access to the legal status many are ultimately granted.
AILA Doc. No. 21050334. (Posted 5/3/21)

The Attorney General has the legal authority to create a more functional and fair immigration court system, using existing tools of discretion and deferred adjudication. Specifically, the EOIR has the authority under regulations to identify and defer the adjudication of nonpriority cases. The EOIR Director has clear authority to defer adjudication of cases pursuant to 8 C.F.R. § 1003.0(b)(1)(ii). Specifically, the Director has the “power, in his discretion, to set priorities or time frames for the resolution of cases [and] to direct that the adjudication of certain cases be deferred…”10 Further, the Director has the authority to “issue operational instructions on policy” pursuant to 8 C.F.R. § 1003.0(b)(1). The Attorney General also has broad discretionary authority pursuant to 8 U.S.C. § 1103(g) to “issue such instructions, . . . delegate such authority, and perform such other acts as the Attorney General determines to be necessary” for the administration of the nation’s immigration courts.11

The use of deferral authority is not merely theoretical. Systemwide deferrals have recently been implemented by EOIR leadership through policy memorandum.12 Deferral acts as a pause in adjudication, akin to the historic use of the status docket, as opposed to a final resolution.13 Indeed, the deferral mechanism can be used as an alternative to the status docket, grounded more firmly in the regulatory scheme, or in tandem, such that deferred cases are placed on the status docket to free up capacity for priority cases. At a future point in time, deferred cases could be recalendared when a determination is made as to the appropriate path to final resolution.14 Based on current agency authority, termination, generally requires a legal deficiency;15 dismissal, generally requires a motion from DHS;16 and administrative closure, is severely constrained.17 However, deferral power remains available as a mechanism that EOIR leadership can independently and immediately deploy at its discretion. Removing nonpriority cases from the immigration courts’ active docket will substantially improve the functioning of the courts and shrink the proverbial haystack, thereby allowing immigration judges to fairly and expeditiously adjudicate priority cases.

Less than one percent of the cases in the EOIR backlog satisfy the Biden administration’s current enforcement priorities.18 Accordingly, consistent with the administration’s own priorities, EOIR could exercise its discretion to defer nonpriority immigration cases. As a first step, EOIR could establish categories of nonpriority cases that can be identified and deferred at a headquarters level without the need for a case-by-case file review.19 This is the path recently recommended by a group of United States Senators and over 150 leading immigration, civil rights, and human rights organizations.20 These Senators and organizations have proposed specific categories of such nonpriority cases that could be systematically identified through existing EOIR data, including: cases that have been pending for more than five years and cases that involve respondents who have potential affirmative pathways to status, such as applications for adjustment of status or new asylum claims, that could be adjudicated by the USCIS.21 These are non-exhaustive examples of the types of nonpriority cases that could be systematically identified and deferred. EOIR should explore these and other similarly identifiable nonpriority categories.

This letter outlines the legal foundation and method by which the Attorney General can restore the fairness and integrity of the nation’s immigration courts. The legal authority, under the existing statutory and regulatory framework, to remove nonpriority cases from the active docket of the immigration courts is clear. Thank you for your attention. For any follow up inquiries, please contact Professor Peter L. Markowitz at peter.marowitz@yu.edu or at 646-592-6537. _____________________________________________________________________________
2
AILA Doc. No. 21050334. (Posted 5/3/21)

1 While this letter focuses on EOIR’s authority to manage the court docket, we do not mean to suggest that the Department of Homeland Security (DHS) does not play an important corresponding role in establishing enforcement policies and priorities for the initiation and resolution of proceedings. In fact, DHS has exclusive authority to decide whether to institute proceedings, see Matter of W-Y-U-, 27 I. & N. Dec. 17, 19 (BIA 2017) and, as noted infra note 21, DHS’s discretion to dismiss removal proceedings could also play a critical role in permanently removing nonpriority cases from the immigration court docket.
2 TRAC Immigration, Backlog of Pending Cases in Immigration Courts (data through Feb. 2021), https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.
3 Id.
4 Id.
5 The Nomination of the Honorable Lisa Oudens Monaco to be Deputy Attorney General Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Lisa Oudens Monaco).
6 TRAC Immigration, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts (data through Feb. 2021) [hereinafter “TRAC, The State of the Immigration Courts”], https://trac.syr.edu/immigration/reports/637/#f1.9.
7 Id.
8 According to EOIR, there are approximately 466 immigration judges nationwide sharing the 1.3 million cases. EOIR, Adjudication Statistics, Immigration Judge (IJ) Hiring (Jan. 2020), https://www.justice.gov/eoir/page/file/1104846/download. However, an unknown number of these judges serve in an administrative capacity and thus do not carry a docket of their own. TRAC Immigration, Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times (data through Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579/. The crushing caseloads are driving many experienced immigration judges to leave EOIR, further exacerbating the backlog. Amulya Shankar, Why US Immigration Judges Are Leaving the Bench In Record Numbers, THE WORLD (July 20, 2020), https://www.pri.org/stories/2020-07-20/why-us- immigration-judges-are-leaving-bench-record-numbers (interview with former Immigration Judge Ashley Tabaddor, then president of the National Association of Immigration Judges).
9 See Quinteros v. Att’y Gen. of United States, 945 F.3d 772, 794 (3d Cir. 2019) (McKee, J. concurring) (acknowledging the “incredible caseload foisted upon [immigration courts]” and how immigration judges being “horrendously overworked” contributes to the denial of fair and impartial hearings); Chavarria-Reyes v. Lynch, 845 F.3d 275, 280 (7th Cir. 2016) (J., Posner dissenting) (noting how “crushing workloads” cause immigration judges to routinely “botch” cases); United States Government Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges 30-1 (June 2017), https://www.gao.gov/assets/gao-17-438.pdf (reporting that increased caseloads have prevented immigration judges from “conduct[ing] administrative tasks, such as case-related legal research or staying updated on changes to immigration law”); see also Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, N.Y. TIMES (Dec. 1, 2016), www.nytimes.com/2016/12/01/us/deluged-immigration-courts-where-cases- stall-for-years-begin-to-buckle.html?_r=0.
10 8 C.F.R. § 1003.0(b)(1)(ii). This management authority can also be exercised by the Chairman of the Board of Immigration Appeals (BIA) and the Chief Immigration Judge. 8 C.F.R. §§ 1003.1(a)(2)(i)(C), 1003.9(b)(3) (identifying the similar subordinate authority of the Chairman of the BIA and the Chief Immigration Judge).
11 See also, 8 U.S.C. § 1103(a)(1) (reserving to the Attorney General certain powers related to the “administration and enforcement of . . . laws relating to the immigration and naturalization of aliens”); 6 U.S.C. § 521(“[T]he Executive Office for Immigration Review . . . shall be subject to the direction and regulation of the Attorney General”).
12 See e.g., EOIR, Policy Memorandum: Immigration Court Practices During The Declared National Emergency Concerning the COVID-19 Outbreak, PM 20-10, fn.2 (Mar. 18, 2020), available at https://www.justice.gov/eoir/file/1259226/download (deferring all non-detained cases at the outset of the pandemic for a limited period of time); EOIR, Notice: Executive Office for Immigration Review Operation During Lapse in Government Funding (Oct. 1, 2013), available at https://www.justice.gov/eoir/legacy/2013/10/24/Shutdown09302013.pdf (deferring all non-detained cases during government shutdown).
13 See Memorandum from EOIR Director James R. McHenry III, EOIR Policy for Use of Status Dockets in Immigration Court Proceedings (Aug. 16, 2019), https://www.justice.gov/eoir/page/file/1196336/download (explaining how “[v]arious types of status dockets under different labels have existed at individual immigration
3
AILA Doc. No. 21050334. (Posted 5/3/21)

courts for many years”). While the McHenry Memorandum established historically narrow criteria for use of the status docket, the parameters for such use have been subject to change as a matter of administration policy. Id.
14 Such eventual pathways may include later individualized determinations to administratively close or dismiss cases or to return them to the active docket, once capacity exists, for full adjudication. Notably, while individuals await final resolution, a deferral order, like administrative closure, would neither confer nor disturb respondents’ entitlement to work authorization.
15 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465-67 (A.G. 2018). But see, e.g., 8 C.F.R. § 214.14(c)(1)(i) (providing for termination pursuant to joint motion for adjudication of a U visa); 8 C.F.R. § 1245.13(l) (providing for termination upon the of adjustment of status to certain Cubans and Nicaraguans); 8 C.F.R. § 1239.2(f) (providing for termination to pursue naturalization in certain circumstances).
16 8 C.F.R. § 239.2(c); 8 C.F.R. § 1239.2(c); see also Matter of S-O-G- & F-D-B-, 27 I&N Dec. at 466.
17 8 C.F.R. § 1003.10(b); see also Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). Ultimately, EOIR should individually evaluate all pending cases to determine whether they meet the administration’s priorities. To achieve this, the Attorney General should also ensure that immigration judges have the ability to prioritize their cases and “exercise their independent judgment and discretion.” 8 C.F.R. § 1003.10(b). Indeed, you were clear in your confirmation hearing that the solution to the immigration court backlog must include “some ability to give to the judges to prioritize their cases.” The Nomination of the Honorable Merrick Brian Garland to be Attorney General of the United States: Day 1 Before the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Hon. Merrick B. Garland). The primary tool used by immigration judges to remove cases from the active docket has historically been “administrative closure.” However, this authority was recently and imprudently curtailed, such that § 1003.10(b) now divests judges of administrative closure authority. See also Matter of Castro-Tum, supra. You can reaffirm and restore the authority for all immigration judges to administratively close nonpriority cases on a case-by-case basis. We express no opinion herein on the merits of current agency precedent regarding termination or dismissal but note that such precedent is subject to your review and could potentially be expanded in the future.
18 There are currently three enforcement priorities: (1) people suspected of engaging in terrorism or who pose a national security threat; (2) people apprehended at the border after November 1, 2020; and (3) people deemed to be a public safety threat, which includes primarily certain individuals with aggravated felony convictions. Memorandum from ICE Acting Director Tae Johnson, Interim Guidance: Civil Enforcement and Removal Guidance (Feb. 18, 2021), https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim- guidance.pdf. Out of the 1.3 million people with cases pending in immigration court right now: less than 100 have any type of terrorism or national security charge, virtually all had cases initiated before November 1, 2020, and less than 0.01% involve aggravated felony charges. TRAC, The State of the Immigration Courts, supra note 6. There is no publicly available data on the number of cases that would fall within the new narrowed gang-based public safety priority group, but it is doubtful this category would substantially increase the percentage of priority cases since less than 0.01% of all cases involve any type of criminal removal ground.
19 While it is critical that such cases can be systematically identified this does not mean that consideration of individualized circumstances is foreclosed. Notices of intent to defer could permit respondents to lodge objections if they would be prejudiced by deferral and DHS attorneys to object if it believes a respondent’s case is not appropriate for deferral. Indeed, deferral could act to facilitate individualized prosecutorial discretion determinations, if DHS coordinates to consider whether deferred cases are appropriate for dismissal, and if affirmative applications in deferred cases are ultimately processed by U.S. Citizenship and Immigration Services (USCIS).
20 Letter from Eight U.S. Senators to Attorney General Garland (Mar. 23, 2021), https://www.aila.org/File/DownloadEmbeddedFile/88403; Letter from 165 Organizations to President Biden (Feb. 1, 2021), https://www.aila.org/advo-media/aila-correspondence/2021/aila-and-partners-send-letter-to-president-biden. 21 For the affirmative pathway to ultimately be realized, in most instances, the removal proceedings will eventually need to be dismissed or terminated. In this regard, DOJ should coordinate its docket review effort with DHS. DHS has the authority to move to dismiss such cases, and immigration judges have the authority to dismiss such cases, because the notice to appear was “improvidently issued” or continuation is “no longer in the best interest of the government.” 8 C.F.R. § 239.2(c) (permitting DHS to move to dismiss any case where the notice to appear was “improvidently issued” or where “continuation is no longer in the best interest of the government” (incorporating grounds enumerated in 8 C.F.R. § 239.2(a))); 8 C.F.R. § 1239.2 (same); see also Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. at 464 (reaffirming DHS authority to move to dismiss on such bases). Indeed, DHS has previously made clear that when relief is “appropriate for adjudication by [US]CIS” DHS attorneys “should consider moving to dismiss proceedings.” Memorandum from William J. Howard, U.S. Immigration and Customs Enforcement, Principle Legal Advisor, Prosecutorial Discretion, (Oct. 24, 2005), AILA Doc. No. 06050511.
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AILA Doc. No. 21050334. (Posted 5/3/21)

Cori Alonso-Yoder
Visiting Professor of Law & Director of the Federal Legislation Clinic Georgetown University Law Center
Jojo Annobil Adjunct Professor NYU School of law
Lauren Aronson
Associate Clinical Professor, Director Immigration Law Clinic University of Illinois, Champaign/Urbana
David Baluarte
Associate Dean for Academic Affairs Washington and Lee University School of Law
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law
David Bedingfield
Visiting Professor Florida State University College of Law Florida State University
Lenni Benson
Distinguish Professor of Immigration and Human Rights Law New York Law School
Kaci Bishop
Clinical Professor of Law
The University of North Carolina School of Law
Linda Bosniak Distinguished Professor Rutgers Law School
Stella Burch Elias
Professor of Law
University of Iowa College of Law
Jason Cade
Associate Dean for Clinical Programs and Experiential Learning J. Alton Hosch Associate Professor of Law
Director, Community Health Law Partnership Clinic
University of Georgia School of Law
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AILA Doc. No. 21050334. (Posted 5/3/21)

Kristina Campbell
Professor of Law
UDC David A Clarke School of Law
Stacy Caplow Professor of Law Brooklyn Law School
Violeta Chapin
Clinical Professor of Law University of Colorado Law School
Michael Churgin
Raybournee Thompson Centennial Professor in Law University of Texas at Austin
Julie Dahlstrom
Clinical Associate Professor Boston University School of Law
Alina Das
Professor of Clinical Law
New York University School of Law
Ingrid Eagly Professor of Law UCLA School of Law
Bram Elias
Clinical Professor
University of Iowa College of Law
Kate Evans
Clinical Professor of Law
Duke University School of Law
Jill Family
Commonwealth Professor of Law and Government Widener University Commonwealth Law School
Paula Galowitz
Clinical Professor of Law Emerita New York University School of Law
6
AILA Doc. No. 21050334. (Posted 5/3/21)

Denise Gilman
Director, Immigration Clinic University of Texas School of Law
Lindsay Harris
Associate Professor,
Director, Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law
Laura Hernandez Professor of Law Baylor Law School
Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law
Geoffrey Hoffman
Director, Immigration Clinic University of Houston Law Center
Alan Hyde Distinguished Professor Rutgers Law School
Anil Kalhan
Professor of Law
Drexel University Kline School of Law
Kathleen Kim
Associate Dean and Professor of Law LMU Loyola Law School, Los Angeles
Jennifer Koh
Visiting Lecturer
University of Washington School of Law
Yoana Kuzmova
Staff Attorney Northeast Justice Center
Eunice Lee
Associate Professor of Law
University of Arizona James E. Rogers College of Law
7
AILA Doc. No. 21050334. (Posted 5/3/21)

Lynn Marcus
Clinical Law Professor
Director, Community Immigration Law Placement Clinic University of Arizona James E. Rogers College of Law
Peter L. Markowitz
Professor of Law
Benjamin N. Cardozo School of Law
Fatma Marouf
Professor of Law
Texas A&M School of Law
Amelia McGowan
Adjunct Professor, Immigration Clinic Mississippi College School of Law
M Isabel
Medina Ferris Distinguished Professor of Law Loyola University New Orleans College of Law
Jennifer Moore
Professor of Law and Pamela Minzner Chair in Professionalism University of New Mexico School of Law
Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Director, Immigrants’ Rights Clinic Columbia Law School
Raquel Muñiz Assistant Professor Boston College
Natalie Nanasi
Assistant Professor
SMU Dedman School of Law
Lindsay Nash
Clinical Assistant Professor of Law Benjamin N. Cardozo School of Law
Lori Nessel
Professor of Law
Seton Hall University School of Law
8
AILA Doc. No. 21050334. (Posted 5/3/21)

Mauricio Noroña
Clinical Teaching Fellow
Benjamin N. Cardozo School of Law
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Houston Law Center
Maria Pabon
Professor of Law Loyola College of Law
John Palmer
Professor Agregat Interí Universitat Pompeu Fabra
Reena Parikh
Assistant Clinical Professor Boston College Law School
Helen Parsonage
Adjunct Professor of Immigration Law Wake Forest University School of Law
Sarah Plastino
Adjunct Professor of Law
University of Denver, Sturm College of Law
Anam Rahman
Adjunct Professor of Law Georgetown University Law Center
Jaya Ramji-Nogales Professor of Law Temple Law School
Shruti Rana
Assistant Dean & Professor
Hamilton Lugar School of Global & International Studies Indiana University Bloomington
Victor Romero
Professor of Law
Penn State Law, University Park
9
AILA Doc. No. 21050334. (Posted 5/3/21)

Rachel Rosenbloom
Professor of Law
Northeastern University School of Law
Kevin Ruser
Richard and Margaret Larson Professor of Law M.S. Hevelone Professor of Law
Director of Clinical Programs
University of Nebraska College of Law
Mario Russell
Adjunct Professor of Law
St John’s University, School of Law
Faiza Sayed
Visiting Professor of Clinical Law Brooklyn Law School
Andrew Schoenholtz
Professor from Practice Georgetown University Law Center
Erica Schommer
Clinical Professor of Law
St. Mary’s University School of Law
Kim Thuy Seelinger
Visiting Professor
Washington University School of Law
Rebecca Sharpless
Professor of Law
University of Miami School of Law
Anna Shavers
Cline Williams Professor of Citizenship Law Associate Dean for Diversity and Inclusion University of Nebraska College of Law
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law
10
AILA Doc. No. 21050334. (Posted 5/3/21)

Jayashri Srikantiah
Associate Dean for Clinical Education Director, Immigrants’ Rights Clinic Stanford Law School
Elissa Steglich
Clinical Professor
University of Texas School of Law
Mark Steiner
Professor of Law
South Texas College of Law Houston
Maureen Sweeney
Law School Professor
University of Maryland Carey School of Law
Margaret Taylor
Professor of Law
Wake Forest University School of Law
Claire Thomas Director, Asylum Clinic New York Law School
David Thronson
Alan S. Zekelman Professor of International Human Rights Law Michigan State University College of Law
Emily Torstveit Ngara
Assistant Clinical Professor of Law Georgia State University College of Law
Enid Trucios-Haynes
Professor of Law
Brandeis School of Law, University of Louisville
Diane Uchimiya
Director of Clinical Programs Creighton University School of Law
Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law in Access to Justice UC Berkeley School of Law
11
AILA Doc. No. 21050334. (Posted 5/3/21)

Shoba Sivaprasad Wadhia
Associate Dean for Diversity, Equity, and Inclusion
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law, University Park
Jonathan Weinberg
Professor of Law and Associate Dean for Research Wayne State University
Anna Welch
Clinical Professor
University of Maine School of Law
Michael Wishnie
William O. Douglas Clinical Professor of Law Yale Law School
Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University
Elliott Young Professor of History Lewis & Clark College
cc: Susan Rice, White House
Esther Olavarria, White House
Tyler Moran, White House
Matt Clapper, DOJ
Margy O’Herron, DOJ
Jean King, EOIR
Secretary Alejandro Mayorkas, DHS Angie Kelley, DHS
Kamal Essaheb, DHS
David Shahoulian, DHS
Tom Jawetz, DHS
12
AILA Doc. No. 21050334. (Posted 5/3/21)

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

All the familiar problems that have plagued the DOJ under past Dem Administrations and helped create the due process and human rights disaster in today’s dysfunctional Immigration “Courts,” that aren’t “courts” at all as operated by Judge Garland, are on display here!

First, I know that I’m not the only person who made this or a similar recommendation to the Biden Transition Team. So, 100 days in, why are we still writing letters while those supposedly “in charge” dawdle over common sense “day one stuff” that would dramatically improve the delivery of justice in America?

Second, the “sign on” list here looks like a “who’s who” of the practical experts who should be running EOIR, comprising the entire BIA, and filling vacant Immigration Judge positions! That they are writing letters from the “outside” rather than running the system from “the inside” shows dramatically why Judge Garland is on a course for failure at DOJ — a failure that American democracy can’t afford!

To date, to my knowledge, Judge Garland has made only one Immigraton Judge appointment — a white, male former prosecutor with no prior immigration, human rights, or judicial experience! In other words, same old, same old ignorant devaluing of Immigration Judge positions and the power they hold over human lives and the future of our nation. When will they ever learn?

The irony or ironies — in all of history, there has been only one Attorney General to recognize the true power and potential of the Immigration Judiciary — for good or evil — and act accordingly. Unfortunately, that happened to be White Nationalist, misogynist, xenophobic, racist Jeff “Gonzo Apocalypto” Sessions! Why is he effectively “still in charge” under Judge Garland and an Administration that ran on a platform of fair and just treatment of asylum seekers and other migrants?

Letters are nice — but they are no substitute for action to solve festering problems!

Who REALLY ‘runs” our disgraceful and dysfunctional Immigration “Courts”

This guy?

Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Or, this guy?

How can you tell?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-04-21

🇺🇸🗽⚖️AILA SPEAKS OUT: GARLAND’S UNCONSTITUTIONAL, DYSFUNCTIONAL IMMIGRATION COURTS ARE A ROADBLOCK ON THE WAY TO A MORE WELCOMING AMERICA THAT ENCOMPASSES RACIAL JUSTICE! — Time For Congress To End The Continuing National Embarrassment @ Justice & Create Article I Court!

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

Amateur Night — Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place!
PHOTO: Thomas Hawk
Creative Commons

Fed up with “Garland’s Clown Show🤡” @ Justice?

Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!

Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!

Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!

Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Enough is enough!

PWS

04-18-21

⚖️🗽🧑🏽‍⚖️CAMILLE J. MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!

https://www.justsecurity.org/75675/to-fix-the-immigration-system-we-need-to-start-with-immigration-courts/

Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.

But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”

Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.

While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”

This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.

. . . .

Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.

An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.

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

Read Camille’s full article at the link.

Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!

If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!

As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.

So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿‍♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.

If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):

Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!

Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!

PWS

04-08-21

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

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Deepa Fernandes reports for the SF Chron:

Ah, Yes, What Timing!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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FULL DISCLOSURE: I am a retired member of the NAIJ.

🇺🇸Due Process Forever!

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Here’s the audio:

🇺🇸🗽⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Due Process Forever!

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Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

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Who REALLY ‘runs” our disgraceful and dysfunctional Immigration “Courts”

This guy?

Or, this guy?

How can you tell?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

Related posts:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Enough is enough!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!

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